
Class E ^1 ^ 

Book ^^ ^^ 



18th CONGRESS, L 91 ] 

2d Session. 



MUSiii©!! 



FROM THE 



PRESIDENT OF THE UNITED STATES, 



tbAnsmittiho 



A REPORT FROM THE SECRETARY OF STATE, 



WITH COPIES OF 



The Correspondence with the Goi^ernment of France^ 



TOUCBISO T!iK 



intev.pretation of the eighth article of the treaty 



E^t ©cfiiston 0C ILouiulmxa. 



rEBRUARY 17, lS'-25. 
Referred to the Committee on Foriiign Aff.iir; 



WASHINGTON: 

FHI^TED av OALES £J SKA.T<JS. 



1 i 



.U 5-8 



[91] 



To the House of Eqjresentatives of the United States: 

I transmit herewith to the House a report from the Secretary ot' 
State, with copies of the correspondence with the government of 
France, requested by the resolution of the House, of the 25th of Jan- 
uary last. 

JAMES MONROE. 
Washington^ 17 th Fehruarijf 1825. 



[911 



Department of State, 

Washington, 16th Fehruanj, 1825. 

The Secretary of State, to whom has been referred a resolution of 
the House of Representatives, of the 25th January, requesting that 
the President would *• communicate to that House any correspondence 
in his possession, which he may not deem it improper to disclose, 
which has taken place between the Government of the United States 
and that of France, touching the inter|)retation of the 8th article of 
the treaty of the cession of Louisiana," has the honor of reporting 
to the President copies of the documents requested by that resolu- 
tion. 

JOHN QUINCY ADAMS. 



[91] 



LIST OF PAPERS SENT. 



10. 

11. 

a. 
12. 
IS. 
14. 
15. 
16. 
17. 
18. 
19. 
20. 
21. 



24. 
25. 



Mr. deNcuville to Mr. Adams, 15th December, 1817, translation 
Mr. Adams to Mr. de Ncuvillo, 23 do do copy 

Mr. dcNeuvilleto Mr. Adams, iGtIi June, 1818, translation 
Mr. Roth to same, 19th July, 1820, 
Mr. Gallatin to same, No. 155, 31st July, 1820, 
Mr. Roth to same, 8th Ani^ust do 

Mr. Gallatin to Mr Pasquier, 15th August 

Mr. Adams to Mr. Gallatin, 24 24th do 
Mr. Gallatin to Mr. Adams, iGl I9th Sep'tomber do 
a Baron Pascjuierto Mr. Gallatin, 13th do. 
6 Mr. Gallatin to Mr. Pasquier, 15th do 
Mr. Gallatin to Mr. Adams, 163 19th October 
Same to Same, 164 23d do 

Same to Baron Pasquier, 22d do 

172 



1820, 
do 



23d do 
29th March 
do do 



Same to Mr. Adams, 

Baron do, Ncuville to same, 

Mr Gallatin to same, 174 

Mr. Adams to Baron de Neuville, 

Baron de Neuville to Mr. Adams, 30th do 

Same to same, 15th May 

Mr. Adams to Baron de Neuville, 15th June 

Baron de Neuville to Mr. Adams, 30th do 

Same to same, 1 5th October 

Mr. Gallatin to same, 233 

Same to same, 236 1 

a. M. de Vilk-lc to Mr. Gallatin, 6th 

h. Mr. Gallatin to M.deVillelc, 12th 

Same to Mr. Adams, 237 19th 

a. M. de Villele to jMr. Gallatin, 15th 

Mr. Gallatin to Mr. Adams, 241 5th January, 

Same to same, 250 27th B'ebruary, 

a. Same to Viscount de Chateaubriand, 27th do 



do. 
extract. 

do. 

do. 

do. 

do. 
translation. 

copy, 
do extract. 

do. 
do copy. 



l8t February, 1821, extract 



do 
do 
do 
do 
do 
do 
do 
do 



do. 

do. 

copy. 

trans. 

do. 

copy. 

trans. 

do. 



24th September, 1822, extract. 



th November, 
do 
do 
do 
do 



do 
do 
do 
do 
do 
1823, 
do 
do 



26. Mr. Brown to Mr. Adams, 17 29th November, 1824, 



do. 

trans. 

copy. 

do. 

trans. 

copy. 

do. 

do. 

do. 



t «1 ] 



No. 1. 

Mr. Hyde de Muville to Mr. Adams, dated Dec. 15, 18 IT. 

[translation.] 

Sir: Tlie Envoy Extraordinary and Minister Plenipotentiary of 
His Most Christian Majesty has received reiterated orders to ascer- 
tain the truth of tlie statement made by several masters of merchant 
ships, affirming that French vessels are not treated, in the ports of 
Louisiana, upon the footing of the most favored natioj.s. Upon in- 
vestigation, it not only appears that such is actually the case, hut the 
undersigned has even found that several protests had been lodged in 
vam with the local authorities, against this manifest infraction of the 
8th article of the Louisiana Treaty. He is well assured that this must 
have been the mere consequence of erroj-, or of incorrect interpretation 
given, on the spot, to a clause which is absolute and unconditional by 
its own terms, and which can neither be limited nor modified, beinar 
the essential unlimited condition of a contract t)f cession, can neither 
be subject to limitation nor to a)iy modification whatever. The Min- 
ister of His Most Christian Majesty persuades himself, that it will 
suflice thus to call tlie attention of the Federal Government to this af- 
fair, in order to obtain from its justice the reparation of an injury so 
very prejudicial to French commerce. He, therefore, requests of the 
Secretary of State that this his re])resenta'aon, made by order of his 
Court, be submitted as soon as possible to the President, in order that 
His Excellency may be pleased to issue orders to such effect that in 
future the 8th article of the treaty of 1803, between France and the 
United States receive its entire execution, and that the advantages 
granted to Great Britain in all the ports of the United States, be se- 
cured to France in those of Louisiana. The principle of justice here 
claimed cannot be denied, and must necessarily insure the reimburse- 
ment of the duties which have been unjustifiably levied upon French 
vessels in New-Orleans. The undersigned Minister expects, with 
entire confidence, the decision of the President; of which he requests 
the Secretary of State will enable him to inform his court as soon as 
possible: The Government of His Majesty desires, as soon as pos- 
sible, to quiet the commerce of France, with regard to proceedings 
so contrary to its interests, and to the true spirit of the Louisiana 
Treaty. 

The undersigned has the honor, &c. 

G. HYDE DE NEUYILLE, 



8 [911 

No. 2. 
Mr. Mams to Mr. Hijde Be MuvilU. 

Department of State, 

December 23, 1817". 

The undersigneil. Secretary of State has received and laid 
before the President, the note which he had the honor of receiving 
from the Envoy Extraordinary and Minister Plenipotentiary of 
France, complaining that French vessels are not, conformably to the 
8th article of tiie treaty of cession of Louisiana, treati'd in the ports 
of that state, npon the footing of the most favored nation; and claim- 
ing, as a right, dtdncible from the same article, that French vessels 
should in future enjoy, in the ports of Louisiana, all the advantages 
granted to the English nation in all the ports of the Union. 

The undersigned is instnicted to say, that the vessels of France arc 
treated in the ports of Louisiana, upon the footing of the most favor- 
ed nation; and that neither the English nor any other foreign nation, 
enjoys gratuitous advantage there which is not equally enjoyed by 
France. But English vessels, by virtue of a conditional compact, 
arc admitted into "the ports of the United States, including those of 
Louisiana, upon payment of the same duties as the vessels of the Uni- 
ted States. The condition upon which they enjoy this advantage is, 
that the vessels of the United States shall be admitted into the ports of 
Great Britain, upon payment of the same duties as are there paid by 
British vessels. 

The 8th article of the treaty of cession, stipulates that the ships of 
France shall ho treated upon the footing of the most favored nations 
in the ports of the ceded territory; but it does not say. and cannot 
be UTiderstood to mean, that France should enjoy as a free gift, that 
which is conceded to otlicr nations for a full equivalent. 

It is obvious, that, if French vessels should be admitted into the 
ports of Louisiana, upon payment of the same duties as the vessels of 
the United States,, they would be treated, not upon the footing of the 
most favored nation, according to the article in question, but upon a 
footing n^.orc favored than any other nation; since other nations, with 
the exception of England, j)ay l.igher toniiage duties, and the excntp- 
tion of Eiiglisii vessels is not a fiee gift, but a purchase, at a fair and 
equal price. 

It is true, that the terms of the 8th article are positive and uncon- 
ditional; but it will readi!y he perceived, that the condition, though 
jiot cxprescd in the article, is inherent in the advantage claimed un- 
der it. If British vessels enjoyed in the ports of Lo'iisiana any gra- 
tuitous favor, undoubtedly. Frencii vessels would, by the terms of the 
article, be entitled to the same. 

A more extensi\e construction cannot be given to tlje article, con- 
sistently with the Constitiilio'j of the la;ited Slates, which declares 
that ''all duties, imposts, and excises, hhal! be uniform throughout the 
United States; and that no i)rererence shall be gi\en by any regula- 
tion (tf Commerce or revenue, to the ports of one state over those oT 
another.'" 



[ 91 ] 9 

It would be incompatible with other articles of the treaty of cession 
itself, one of which cedes the territory to the United States *'in full 
sovereignty,** and anotlier declares that its "inhabitants shall be in- 
corpoiated in tlie union of the United States, and be admitted as 
soon as possible, according to the principles of the Federal Constitu- 
tion, to the enjoyment of all the ri,e;hts, advantages and immunities 
of citizens of the United States." If France could claim/orerer, ad- 
vantages in the poits of Louisiana, which could be denied to her in 
the other ports of the United States, she would have ceded to the Uni- 
ted States, not the full, but an imperfect sovereignty, and if France 
could claim admission for her vessels forever, into the ports of Lou- 
isiana, upon the payment of duties not uniform with those which they 
must pay in the otiier ports of the United States, it would have been 
impossible to liave admitted the inhabitants of Louisiana, according 
to the principles of the Federal Constitution, to the enjoyment of all 
the rights, advantages, and immunities, of citizens of the United 
States. 

Tiie undersigned is happy to be authorized, in concluding this note, 
to add, that the Government of the United States is willing to extend 
to France, not only in the ports of Louisiana, but in those of all the 
United States, every advantage enjoyed by the vessels of Great Bri- 
tain, upon the fair and just equivalent of reciprocity; and that, in the 
meantime, the vessels of France shall be treated in all the poi-ts of the 
United States, including Louisiana, on the footing of the most favored 
nation; enjoying gratuitously every favor indulged gratuitously to 
others: and every conditional favor upon the reciprocation of the 
Same to vessels of the United States in France. 

He prays the Minister of France to accept the assurances of his 
very dtetinguished consideration. 

JOHN QUINCY ADAMS, 



No. 3. 
Mr. de JSTeuville to Mr. Adams. 

[translation.] 

Washington, 16th June, 1818 

Sir: I have had the honor of receivitig your note in answer to 
mine of the i.^th December last, concerning the non-execution of the 
8th article of the Louisiana treaty. 

I took care duly to communicate the proposal made by the Federal 
Government, to extend to France, not only in the ports of Louisiana, 
but even in all those of the United States, the advantages therein en- 
joyed by British vessels on a footing of absolute reciprocity. His 
Majesty is ever disposed not to neglect any thing that can tend to 
rivet the bonds of friendship of the two countries, and to improve 
9. 



10 L 91 ] 

tlieir commercial intercourse, and will, no doubt, examine this pro- 
posal \\ ilh very particular attention. 

In the mean time, as it would be neither just nor proper, that the 
execution of the clauses of a contiact already made and comj)]etely 
concluded, should be dependent on an ari'anj^ement, which, as yet. is 
only in coutemplatinn, and, as the enjoytncnt of a perpetual uncon- 
ditional riglit should never in any case b" blended with reciprocal 
a(l\anta!j;es. oi* concessions wiiich time annuls, and which accidental 
causes may mo'.lify or destroy; as France claims nothirig but what 
siie knows is due to her, and as she is well persuaded that the Fed- 
eral (jiovrnaneiit will never deny what it is conscious of owing; 
there is much reason to hope that the following observations will suf- 
fice to establish our riglit, and thus remove every obsta'^le tails free 
enjoyment I will add, that fresh orders from His Majesty make it 
my duty to neglet t no means of obtaining, as soon as possible, this 
act, whoseaccomj)rKshmcnt must be expected from mature deliberation 
on the question, and is warranted by the acknowledged equity of the 
Federal Govei'ument. 

You have stated, sir, that French vessels are treated in the ports of 
Louisiana vpon the footing of tlie most favored nation; and that no for- 
eigh natwn enjoys there any gratuitous advantage ivhich is not equallij 
enjoyed by France' You add, sir, fhut^ if British vessels are allowed in 
the ports of the United States, certain advantages which Jimerican ves- 
sels likexvise enjoy in the ports of Great Britain, it is by virtue of a con' 
ditional compact founded on reciprocity of advantages. 

Finally, after recalling the 8th article which stipulates expressly, 
that, in future, and for ever, French vessels shall be treated upon the 
footing of the most favored nation, in the ports of the ceded territory: 
you observe that the article does not say, and that it could not be under- 
stood to mean, that France should enjoy as a free gift, that which is con" 
ceded to other nations fur a full equivalent. 

I shall, in the iirst place, have the honor to observe, that France 
asks not for a free gift: slie claims the enjoyment of a right, which 
it is not even necessary for her to acquire, since it proceeds from 
hei-self, being a right which, when she consented to dispose of Loui- 
siana, she had power to reserve for the interest of her trade, and 
the actual reservation of which is established, not implicitly, but in 
the most precise and formal terms, by the 8th article of the Louisiana 
ti-eaty. 

France. I repeat it, asks no free gift, since the territory ceded 
is the e(|uivalent alirady ])aid by her for all the clauses, charges, and 
conditions, executed, or which remain to be fulfilled, by the United 
States; and which, principally, consist in the 7th and 8th articles 
of the Treaty, and 1st of the Convention. 

If the 8th article of the Louisiana Treaty had no other object but 
that of securing to France a conditional advantage in the ports of 
Louisiana", if such had been the true spirit of this clause, and final- 
ly, if the American negotiators had been firmly convinced that this 
reservation of the French (ioveriiment was not absolute, but was 



[91] a 

merely one of tliose customary reciprocal concessions wiiich occur in 
almost all Treaties of Amity and Commerce: it is likely that no 
pains would have hecn taken to frame the article, so as absolutely 
to contradict tiie intention of the contracting parties; and it stands 
to reason that, if such had been their A'icws, the terms usually cm- 
ployed in other Treaties would have been employed here also, in- 
stead of so pi.-ecise a stipulation of an uncou<{itional aiid perpetual 
advantage in favor of France. In all the Treaties between France 
and tiie United States, the condition of reciprocity is positively 
mentioned: tiiey all expressly say. that the contracting parties shall 
rccJprocaUy enjoy such favors as shall b© conceded to other nations, 
freelif, if freely granted io other nations, or, upon granting the same 
^condition, if conditionally granted. How shall we account for the 
strange and unusual construction here adopted? Who would admit 
the possibility, or likelihood, of an omission on the part of Negoti- 
ators, the object of wljose mission was not to stipulate doubtful 
clauses, subject to discussion, but, on the contrary, as it is expressly 
stated in the Treaty, '* to remove all sources of misunderstanding 
*' relative to objects of discussion, and to strengthen the union and 
♦' friendship which, at the time of the said Convention, was happily 
<' rc-es'abUshed between the two nations'" 

And furthermore, how shall we reconcile the silence observed by 
the Senate in iSOS, respecting this unconditional and unlimited favor 
secured to France, with the positive refusal of the same House, in 1801, 
to ratify a convention founded on reciprocity of advantage, unless on 
the express condition that it should be limited to eight years? 

The natural inference, the only explanation of all this, is, that, in 
1801, the question was on a convention or treaty of amity and com- 
merce, while, in 1803, it wan on a contract of sale or cession, 
which instruments are of so different a nature as not to admit the ap- 
plication of similar principles and consequences; nor can it be sup- 
posed that the negotiators of the treaty of I80t had forgotten to 
mention that the citizens of the two nations should reciprocally bo 
treated, each, in the ports of the other, upon the footing of the most fa- 
vored nations, since this principle of reciprocity was not only the ge- 
neral basis, but was even, in almost every instance, the sine qua non 
of preceding commercial convetitions. 

But the negotiators of the treaty of 1803, knew full well that they 
were not commissiojied to settle the commercial or navigating inte- 
rests of the two countries, and were merely authorized to make a con- 
tract of sale or cession, whic!i, however important, from the value of 
the object ceded, was not the less subject, like every conveyance be- 
tween individuals, to certain and invariable rules of construction and 
interpretation. A contract of sale admits of no implication, (sous 
entendu) it is a plain simple transaction, by which one party is bound 
to deliver a certain property, and the other party to receive it, on ccr- 
taijj charges and conditions more or less rigorous. 

Those clauses and conditions cannot be interpreted otherwise than 
according to the terms in which they are expressed in the contract; 



12 [91] 

nor can they be annulled or modified except by the coni3ent ot both 
parties. Their entire execution is, indeed, so ri.a;orous]y binding, tliat 
it olone may be said rmally to seal the transaction. But the article 
would appear to you, sir. to bo. in this, its only natural construction, 
inconsistent with the constitution, which declai'cs tliat all dutieSy im- 
pasts, and ^a?cises,,shall be uniform throughout the United States. 

It wouhl seem \o me that this clause of the constitution has no other 
rcfeieiice than to the interior administration of the country, and tiiat 
it cannot be proper to consider, in the light of a mere tax or impost, 
that wliich is an express condition of tlic sale or cession of a territory, 
and is one of the clauses of a treaty which itself becomes a law of the 
United States. 

You express an o])inion, sir, that the 8th article, if interpreted ac- 
cording to its grammatical and literal sense, would be incompatible 
•with another article of the same treaty, which cedes the territory to the 
United States in full sovereignty, arguing that, if France could claim for- 
ever advantages in the ports of Louisiana, which could be denied to her 
in the other ports of the Uuited States, she would have ceded to the Uuited 
States not the full, but an imperfect sovereignty . 

AMowme to observe, that this last point of the argument is answer- 
ed by youi'own decision admitting tiiat, if British vessels enjoyed, in 
the ports of Louisiana, any gratuitous favor, undoubtedly Frenchvessels 
would, by the terms of the treaty, be entitled to the same. 

This admits the possibility of an imperfect sovereignty, and sup- 
poses an instance in which France might be entitled to claim, in the 
ports of Louisiana, a favor which could be denied her in the other 
l)orts of the United States. 

Moreover, if the United States have, by the constitution, a right to 
giant to other nations gratuitous favors in their ports, it follows, 
from your own interpretation of the perpetual reservation made by 
France, that, in order to deprive her of the right so reserved, and to 
avoid rendciing, tliereby, tlie sovereignty of this republic imperfect, 
the Federal Government must not grant to other nations any gratui- 
tous concessions in the territory ceded by France, though it should be 
found expedient so to do, atid advantageous to their commercial interest 
and policy. In other words, the Federal Government, by consenting 
to tiieeiglith article, would have deprived itself of a real right of sove- 
reignly. In the preceding hypothesis, the dilbculty is merely eluded 
and not removed. The right is not the less unqualified, and consent- 
ed to forever. 

But will it be said the constitution allows no preferences among 
the different states; they are all, by the federal compact, subject to 
the same charges, and are to enjoy the same privileges. It would 
apjiear to me, sir, that this perfect uniformity is applicable only to a 
state when it has once become a state. The regulations made for the 
family cannot be meant to extend beyond its circle; and thelaw which 
est.tldished such regulations never can have blended the circumstan- 
ces pre existent to tlie admission of a new member (much less the ve- 
ry conditions of admission) with the rights, charges, and privileges. 



[91] 18 

which are the consequence springing therefrom: thus did Congress 
judge: to th<Mn it appeared that tlic instrument of sah' oi* cession of 
Louisiana liad no analogy to a commorcial reguh\tinn, or to a disttibu- 
tion of taxes; and they admitted, without discussion, the 7th and 81h 
articles of thetieaty, becatise, if the constitution does not allow that a 
territory, when once admitted into this Union, be marked by any dis- 
tinct cliarges or advantages, it does not, on that account, prevent the 
fulfilment of clauses exacted and consented to as conditions of its ad- 
mission, f n all this there is neitlier exception nor preference; it is the 
mere and simple execution of a conti'act freely and lawfully entered 
into. But the third article says, that the inhabitants of the ceded ter- 
ritory shall be incorporated into the Union, and admitted, as soon as 
jmssible, to the enjoyment of all the advantages and immunities of citi- 
zens of the United States. 

This is true, and such, no doubt, was the intention of the contract- 
ing parties. They expressly agreed, tiiat this admission should take 
place as soon as possible; but most assuredly it was meant that this 
should be done in conformity with the clauses and conditions mention- 
ad in the treaty; and if the 8th article could have been considered 
as an obstacle to the execution of the third article, it would equally 
have been so thought of the rth; this article was, however, never con- 
tested; it even received, during the twelve years of its duration, or 
should have received, its full and entire operation by virtue of the 
regulating act of Congress, of the 24th of February, 1804. 

France and Spain still enjoyed in 1815, in Louisiana, the rights 
and privileges secured by the 7th article, which rights, by the very 
terms of the treaty, never can be granted to any other nation. France 
and Spain were in the full enjoyment of tisese exclusive rights and pri- 
vileges in 1815: and yet, in 1812, the stipulations of the 3d article was 
fulfilled, the territory of Loiiisiana was admitted as a state into the 
Federal body, and this new state was received without restriction, on 
an equal footing with theo.-iginal states, in all respects whatever. 

If. therefore, there were at this day any contradiction between the 
3d and 8th articles, how could Congress, in 1812. surmount the ob- 
jection arising from the much stronger inconsistency, which, on this 
supposition, njust have existed between the 3d and 7th articles? 

When Congress made Louisiana a member of the Union, before 
the expiration of the 12 years, it was judged that such a compliance 
with the conditions of a treaty, was by no means imcompatible with 
the exercise of the full and entire rights of sovereignty. Perhaps it 
may be answered, that the 7th article granted only temporary privi- 
leges, and that the eighth article has no term fixed to it. To me, it 
appears that the woviu forever, change nothing but the duration of the 
privilege, without, in the least degree, altering the nature of the ques- 
tion. Under a constitutional system, nothing can be ddue, ordered, 
or consented to, that would infringe, even but for a limited term, the 
established laws of the country. All the transactions of Governments 
must be legal. If, therefore, the piovisionsof the Constitution which 
regulate the existence of a state after its admission, were applicable 



14 [91 J 

to the oonditions on which it is to be admitted, it would, in such case, 
have been no less impossible in 1813, than at tlie present day, to 
grant to the inliabitants of Louisiana tiie riglits, jjrivileqes, and im- 
munities, of citizens of the United States, since, on that supposition, 
they must, in common with the other states, have had a right to make 
France and Spain pay, in t!ieir po!'ts, l)igher tonnage duties than 
those paid by tfie citizens of the United States; and since the Federal 
Government Iiad no right, at that time, to grant, in the ])orts of the 
ceded territory, to otiier nations, the privileges therein secured to 
F'rance and to Spain. France did intend to ce<le the territory of 
Louisiana to the United States forever, and in full sovereignty: hut 
sovereignty does not consist in the enjoyment of every right and pri- 
vilege: it lies in the |)re-eminent important autliority to enforce their 
observance. When the French Government ceded Louisiana, it 
ceased to be the sovereign of the country, but it did notecase to hold 
proi)erty therein, since it reserved a right or privilege: for, a pri'i- 
Icge acquired or reserved, is propei'ty as sacred as an annuity, as a 
rent charge, or any othei*. 

France, therefore, claims only the enjoyment of what is her pro- 
perty; giving her possession of this lawful right far from rondei-ing 
the sovereignty of the United States imperfect, would seem, in a 
measure, only to make it more complete, since it is certain that the 
liglit claimed by P'rance, is one of the essential conditions of the ces- 
sion made by her of that sovereigtity. It may, perhaps, be answer- 
ed, that there is some difference between the contracts of nations with 
other nations, and a sale mad-e by one individual to another. ! see 
very little, I confess, on tiie score of equity, the rules of interpretation 
being in all cases alike applicable to eveiy human transaction. By 
the law of nations, it is an invariable rule that treaties or contracts, 
of whatsoever nature, should be understood according to the force and 
meaning of their expressions; and nothing surely can be more uncon- 
ditional or more clearly expressed than the following clause: "In 
futuic, and forever, after the expiration of the 12 years, French ves- 
sels shall be treated upon the footing of the most favored nations in 
the ports of the said territoi'y." Inj'iitxire andj'orever are expressions 
free from all ambiguity. JJfter the expiration of the 12 ycars^ these 
Avords prove, that the treatment or privilege secured by the 8th ar- 
ticle, is to follow without condition or limitation of time. That of the 
7th article. French vessels shall be treated, does not mean may be 
treated: but tliat they shall undoubtedly and positively be treated 
upon the footing of tlie most favored nation. And it makes no dif- 
ference whether that treatment be the consequence of a gratuitous or 
of a cotiditional concession; the article has no restriction; it expressly 
states, French vessels shall be treated upon t!ie footing of the [most] 
favored nations. Fhe consequence is, that French vessels are, with- 
out condition, to be treated, in the ports of Louisiana, upon the foot- 
ing of the vessels of Great Britain, which is at this time the most 
favored nation. I think I have proved, sir, that to demand an equi- 
valent of France, because England has given one, would, in a niea- 



[91] 



iS 



sure, be requiring her to purchase what is already her own property, 
and oblij^ing her to pay twice for the same thing. 

I think I have also proved^ that the sovereignty of the United 
States is, and will still remain, entire and perfect, such as it was 
ceded by the treaty of 1803,' although Fiance be put into possession 
of tliat right, which is secured to her in future and forever, I could 
cite many e>:amples of analogous privileges, which never were con- 
sidered as impairing the sovereignty of nations. But it appears to 
me, that the best of all arguments triat can be addressed to the equi- 
ty and honest feelings of the American Governmtnt, is, that France 
claims only her lawful due and rights that the title establishing it is 
worded in terms of such force and precision, as must suffice to re- 
move every doubt, and absolutely to solve the question. 

The claim which I have the honor to address to you, sir, being en- 
tirely dependent on the Executive authority, I cannot but hope, I 
shall soon have to inform my Court, that the President has been 
pleased to issue such orders as will secure in future the execution of 
the 8th article of the Louisiana Treaty, and the immediate reimburse- 
ment of the duties which have been unjustifiably levied to this day. 

I have the honor to be, &c. 

G. HYDE DE NEUVILLE. 



No. 4. 

Mr. Roth, Charge d' Affaires of France, to the Secretarij of State. 

translation. 

Legation of France to the United States, 

Washington, July 19, 18£0. 

Sir: I learn by a letter from his Majesty's Consul at New Or- 
leans, dated 13th June, the time when the law, establishing a new 
duty of tonnage upon French ships, came to be known in that city, 
that the officers of the Custom House there appeared to be of opinion 
that this law ought to be put into execution in Louisiana, as well as 
in the other parts of the Union, because it made no exception; and 
that these agents of the j)ublic revenue made their dispositions ac- 
cordingly. The law of 15th May, in question, does, in fact, point 
out no exception, and even has these words, *' any act to the contrary 
notwithstanding." 

But this disposition, implying an abrogation of anterior laws be- 
longing to the duty of the state, cannot be applied to treaties and con- 
tracts of nation with natioi, which are without the reach of interior 
legislation, and form another distinctlaw, which can only be modified 
by mutual consent by new treaties between the contracting parties. 



16 



[91 J 



This is predetermined, and understood in all the private acts of 
nations. 

The treaty of cession of Louisiana says, positively, article 8, " In 
future and foicvor, after the expiration of the twelve years, the ships 
of France shall he treated upon the footing of the most favored na- 
tions in the ports ahove mentioned." 

Passin.i^ hy the existing discussions upon this article, and in what 
manner the word favor is understood, tliere can he no doubt of the 
sense vvliich it expresses for the present case. 

The new duty of tonnage estahlishcd on French ships exclusively, 
p aces them in a state of grievous inequality in regard to the ships 
ot other nations^ even here there is no (picstion of a favor refused, 
but ot a charge imposed. What regards Louisiana, is exactly con- 
trary to what IS guarantied for ever and ever by the 8th article. 

Keativc to this state of inequality, in which the law of 15th May 
has placed l^rencli navigation in the ports of Louisiana, I shall ob- 
serve, in passing, tliat th-^re is a grave error in the reasonings which 
have bei^n employed in Congress, and in the printed correspondence 
ol Mr. liaihitin. tojustify this measure. 

It is jn-etctided, that its aim is to counterbalance the discriminat- 
ing duties established in France. But these duties are applied in 
common to all foreign nations, and do not place the navigation of the 
Lnited states in our ports upon any footing of inferiority, with re- 
gard to other nations; whilst the new duty of tonnage imposed in 
America so ely upon French ships, places the navigation of France, 
with regard to other nations, in such a state of inferiority, that it is 
equivalent. It the law continued, to a real exclusion of our ships from 
he ports ot the Lnited States. This is any thing but a compensation 
based upon reciprocity. Another disposition of this law, which 
would give It a character dilHcult to conceive, if it were not supposed 
to arise from inadvertence, is the short time assigned for its execu- 
tion, in America, a law made on the I5th of MaV, against a power 
otF^urope, cannot be put into execution on the I'st of July, that is 
only lo, y.fivc days from the date, without injuring the security 
granted to commerce; and it is not from a power eminently commei- 
cial, tha an example so dangerous, given with deliberation, ought to 
be apprehemled It must be believed that the peculiarity arises Jolely 
fion the considerable lapse of time between the presenting of the bill 
and Its adoption. But it is nevertheless a tort with whid, our com- 
mcMCc by sea is threatened, and I expect strong remonstrances on the 
next arrivals of French ships, unless instructions, agreeably to t-e- 

?oe Tti": if : r ''"■' "i-^r''^' "'" •?'^'^» t« '^' ««'^^-'- «f the custoins, 
toi ships that have sailed before the promulgation of the law, in the 
place whence they have departed. 

«l.i^.iu""^ ?^ '"tcntion. Sir, to pursue, at present, the observations 
already con ained in the letter of his Majesty's Minister, dated ^4tk 
Ma>, upon this question, in general, m.r upon the discussion, pre- 
wous y raised concerning the treaty of cession of Louisiana. I shall 
aN^ait, upon these two subjects, for your answer, and such instruct 



L9AJ 17 

tions as may be directly addressed to me by my Government. But, 
as to the particular subject which I have the honor of submitting to 
you, the execution of the law of tonnage in the ports of Louisiana, 
notwithstanding an express stipulation of a treaty which this law 
cannot touch, this makes a part of my natural duties, and wants no 
special instructions for requiring my interference. The new law had 
only arrived in Louisiana at the moment I was written to. I must 
think that there was a mistake, or a want of sufficient instructions in 
the opinion then expressed by the officers of the customs. Before 
answering his Majesty's Consul, upon the conduct which he ought 
to pursue, I have the honor of praying you to be pleased to inf<rrm 
me on a point of such importance, in the relations and ties existing 
between France and the United States. 

I have the honor to offer you, Sir, the respectful assurance of my 
high consideration. 

ROTH, 

Charge d"* Jijf aires, ad interim. 



No. 5. 

Extract of a letter, No.\55, from Mr. Gallatin (communicating sub- 
stance of a conversation with M. Pasqiiier,) to Mr. Mams, dated 

31 July, 1820. 

'* An allusion was made in the course of the conference, to the 
claim of the French, to be treated, without any equivalent, at New 
Orleans, in the same manner as the British now are. I did not know 
of this difficulty till it was occasionally mentioned in conversation by 
Mr. Pasquicr. The pretension appears to me altogether untenable,- 
but I would have wished to know what answer has been given at 
Washington, to the reclamations of the French Minister, and what 
are the President's intentions on that subject." 



No. 6. 

Extract of a letter from Mr. Roth, Charge d'affaires of France to the 
Secretary of State, dated 8th August, 1 820. 

[transiation^.] 

" The letter which I had the honor of addressing to you on the 
18th of last month, was intended to represent that the law of 15th May 
1820, which established upon French ships, in the ports of the United 
States, a tonnage duty different from that which is levied upon other 
foreign ships, could not be applicable to French vessels in the ports of 



18 [91 ] 

Louisiana, agreeably to the 8th article of the Treaty of cession, whicb 
runs thus: 

*' Article 8. In future and forever, after the expiration of the twelve 
year', French ships shall be treated upon the footing of the most fa- 
voured nation in the Ports above mentioned." 

1 ought to coiifitie myself to the citation of the text, upon a con- 
dition so clearly, so positively expressed, in a special clause of a 
Treaty of cession, of which all the conditions together, and each of 
thcni in particular, areequally obligatory and necessary to the valid- 
ity of the contract. I have not had the honor of being informed of the 
measures which the Federal Government has taken to enforce, in this 
point, liie execution of the Tteaty of cession, agreeably to the obliga- 
tions contracted by the Treaty itself, notwithstanding every law to 
the contrary. This care of protection belongs to llie power which 
lias made the engagement. As regards the King's Legation, 1 have 
done, what was its duty for the preservation of rights, by demanding 
that these measures should he taken, and by prescribing to his Ma- 
jesty's consul at New Orleans, who expected an answer, to protest 
against every exaction which might be made, by the Custom House, 
fiom French vessels beyond what is received from ships belonging 
to the most favoured nations, but not to go on, if his protest remain 
witliout eft'ect, till it had been referred to the authority which signs 
and "maintains the Treaties. In this I have only conformed to 
the insti'tictions formerly adiessed in a similar case concerning the 
same 8th article of the Treaty of cession of Louisiana." 



No. r. 

Extract of a letter from Mr. Gallatin^ to Mr. Pasquicr, dated 15th 

August, 1820. 

•' I have in this letter, confined myself to that subject which, from 
the present situation of the commercial relations of the two countries, 
requires the most immediate attention. But I must at once state 
that, having no other knowledge of the difficulties in the execution 
of the 8th article of the Louisiana convention, than what is derived 
from your Excellency, and having received no communication what- 
ever on that subject from my Government, it is not in my power to 
discuss it at this time." 



No. 8. 

Extract of a letter, JV'o. 24, from Mr. Mams to Mr. Gallatin^ dated 

24th August, 1820. 

" I had the honor of receiving, yesterday, your despatches, No. 
148, 149, and 150, with their enclosures. The preceding numbers 



L91] 



19 



had been received before. The last of your letters bemg dated b« 
6?h of July, I am in hopes that Mr. Hyde de Neuv. He. who sailed 
from Annapilis on the 1st or 2d of June, must have arrived in France 
Sn a very few days afterwards. He was the bearer of my letter 
to vou No. 20, and, by his personal observation, was aware ot the 
friendi; disp;' tion towards France with which the act of Con.^ress, 
of the fsih of May, was passed. The President will much regret the 
c rcumstance, if it should be viewed by the French Government with 
rSent sprit. The duty of 100 francs per ton, upon American 
Vessel ,f laid, will, probably, not have very extensive effects ship- 
mentB to France in American vessels having already in a great mea- 

'"- I'tTs'sfncerely hoped by the President, that this counteracting and 
rounteivaim.- system will give way to the disposition for an amica- 
r an-ang;me;:t';1n a concfliatory spirit, and with a view to the m- 

^^"^1^: torn Jei; wtiS; has been manifested in France, not oi^y on this 
occasion, but in relation to all the just claims of citizens of the Unit- 
ed Sates upon the French Government, could not possibly terminate 
Without coing to a crisis; and, at the same time that a pos, i ve re- 
Te' ion of tl?e m^ost indisputable demands of our citizens for .ndemn.ty 
was Returned for answer to every note which you presented m their 
ieha r u7on the untenable pretence, that the Government of tin. 
Bourbons cannot be responsible for the outrages of its immediate pre. 
Ssso s cla ms equally untenable were advanced, and reiterated 
^ h he most tonaci^ous j^erseverance, of privileges, contrary to our 
ronstitution. in the ports of Louisiana, founded on an inadmissible 
con rucS of an article in the treaty for the cession of Louisiana. 
" I the construction contended for of that article by France were 
even conrtrhow c^ present Government claim any advantage 

from a compact made wiUi Napoleon, after an explicit declaration, 
rtl^yllol'themselves absolved from uU ^^^^;;^fZ:^Z 
due to the United States and the.r citizens for '^ ^^f jj .^J^^^^' ^^ 
tl.i« now because Mr. Roth informs me that he has uiiecieo xne 

That minister replied; but, as theie was """» "^ " nostnon- 

X 'ct t'o .,^ to have .he las, wo,d. _ ■£!- P- -- ■;. thaU 



ed, merely f» 



no possible object to us ui nave ...v. .«.. ..^.^_ . 

by he eighth article of the Louisiana lioaty,ienc.xe^^^^^^^ 



20 



[91] 



score of equal favor, that he should give a bag of cotton or a hogs- 
head of tobacco to him, because he had sold the same articles to a 
third, as France can claim as a gratuitous favor to her that which 
has been granted for valuable consideration to Great Britain. The 
claim to which we admit that France is entitled under that article, is 
t« the same privilege enjoyed by England, upon her allowing the same 
equivalent. That is completely and exclusively our treatment of the 
most favored nation, and to that we are not only willing, but desirous 
of admitting France. But even to that she can have no pretence 
Willie she refuses to be responsible for the deeds of Napoleon. If she 
claims the benefit of his treaties, she must recognize the obligation 
ot his duties, and discharge them." 



Ko. 9. 
Extract of a letter, M. 161, from Mr. Gallatin to Mr. Mams, dated 

Septemher 19, 1820. 

"On the 12th inst. Mr. Pasquicr invited me to a conference for the 
same day, in which, to my great astonishment, he stated, that the 
King s Government considered the discussion of the 8th article of the 
treaty, of the 30th of April, 1803, as inseparable from that of the 
discriminating duties, since France claimed, under that article an 
exemption in Louisiana from our new tonnage dutv, and generally 
Irom all those to thepiiyment of which any other natiJn was I'mt liable. 
1 expressed my surprise at this determination, which, since I was not 
instructed on that subject, must, for the present, jiut an end to the 
negotiation. I said that what rendered it more extraordinary that 
a question, which had heretofore been treated apart from all others, 
simu d novy be made an obstacle to the adjustment of other difficulties, 
affocting all the commercial relations of the two countries, was the 
si.ence which had, at /list, been preserved by France on that point. 
Ihe nrst convention between tiie United States and Great Britain 
niade in pursuance of the act of Congress of March, 1815, and bj- 
^^^\l I f;«f''"""a^'".^- J"t>es were reciprocally abolished on both 
s des, nould liave expu ed m l 8 1 9. It was renewed for ten years in 
the year i818, without our Government having had any notice of this 
chum on the part of France, although the fir^t convention had tin 
been in force tor more than two years and a half. I added, that if, 
accori.ng to my former suggrstion, the negotiation should he now 
transferred to ^\ asui.^^ton, 1 thought it mv duty (« express my con- 
viction t at the Government of the United SiLes -wiu d ce ta n y 
cons.der he cous ruction of the article, for which France contended 
as altogether .nadm.ss.ble. Mr. Pasquicr accounted for the deiav in 
claiming the privileges, to which France thought herself entitled, by 
thepeciihars..tuanonin which she was plare<I, during the period to 
wh.cb I alluded, and which had prevent d her Goverifment'f m at. 



[91] 2i 

tending to any other than her internal aflfairs, or her European con- 
cer!is. As he intimated that the determination not to separate the 
discussion of the article in (juestion, from that of discriminating du- 
ties, was taken, 1 refjaested him to communicate it in writing, hy 
answering my h-tter of the 1 5th of August. IMiis he promised to do, 
and 1 have the honor to enclose copies of the letter which he accord- 
in'^-ly wrote to me on the ISth, and of my answer of the 15th instant. 
You will perceive that the object of this answer is to impress on this 
Government the necessity of desisting from this prejjosterous claim, 
if they intend to bring the negotiation to a favorable result, cither 
here, or at Washington. , 

" -r. Hyde de Neuville called on me on the evening ot tije IStli, 
and expressed liis regret that 1 had not succeeded in concluding, at 
least, a provisional arrangement, and the reluctance he feit to he 
obliged to leave France at this time. I told him that he must be sen- 
sible that the failure could not be ascribed to me. Whatever might 
be my view of the subject, however disposed to listen to the argu- 
ments which migiit be adduced by the French Government, it was 
evident, that a discussion of the 8th article was useless, since it was 
evident that I could not, without special instructions, accede to the 
construction assumed by France. It was, therefore, equally fair, 
and calculated to avoid unnecessary delays, to have .Jeclarod at once, 
what was the fact, that, not being instructed on that subject, I could 
not discuss it. I would add, that this was the only reason why 1 had 
avoided the discussion, that the pretension set up by his Govern- 
ment appeared to me altogether untenable, and that htlle more seein- 
ed ntcessary to repel it, than merely to state the question. This 
led to a desultory conversation on the nature of that claim, ot 
which 1 will attempt to give the substance, although I am a- 
ware that I may not have fully understood his reasoning, and that, 
having already discussed the question with him, it must be more la- 
miliar to you than to me. ^ , i i 

- Mr. deNeuville's ars;uments appeared to me to he drawn less 
from the natural and obvious meaning of the article, than from col- 
lateral circumstances. He appealed to the intentions ot the negotia- 
tors of the treaty of 1803, which he considered as susceptible of prooi, 
and said, that the condition, stipulated in the Sth article, was the es- 
sential compensation made to France; and, in fact, the real price 
paid by the United States for Louisiana; and that the eighty millions 
of francs were but an accessary. He mentioned the insertion, mi 
some other treaty, of expressions limiting a sim. ar provision to he 
sense for which we contended, and insisted that tl^-i; omissiun in e 
article in question, was fatal to our construction ot it. He a.! u ed 
to a supposed inconsistency of the article with the constitu lou o t e 
United States, which, if it rendered ^ impossible for is to <o..py 
with that provision of the treaty, made it necessary that '.e should, 
Tn lieu of it, make some other concession or compensation acceptable 

'" -rhi^'last argument was not perfectly intelligible to nie and^t 
niidit have been inferred f.-om it, that the claim was set up onl} loi 



22 [91] 

the purpose ut obtain in.jj concessions in other respects. I observed, 
that any diifictilty arisinjii^ from a supposed inconsistency between 
our Constitution and the Louisiana treaty, was a concern of our 
own,- that I did not perceive any, as the Constitution of the United 
States became applicable to Louisiana, subject to any exception to be 
found in the instrument by which we iiad acquired that territory; 
and that, in point of fact the 7th article of the treaty had, during 
twelve years, been carried into effect without any difficulty, al- 
though it gave to France and Spain, privileges at New Orleans, 
which they enjoyed in no other port of the United States. We could 
not at this time, make a new treaty to that effect. I saw nothing 
that prevented the execution of that of 1803, according to its strict 
construction, which the United States could not at present, even if 
they were so disposed, enlarge in favt)r of France. 

" Keing unacquainted w ith the facts from which Mr. Hyde de Neu- 
ville infen-ttd the intentions of tlie negotiators, I could form no opinion 
on that point; but I insisted, that whatever they might have been, it 
^va.s not by these tl^at the treaty must be construed; and that the two 
nations were bound by the expressions, and only by the expressions, 
used in the several articles, such as they had been ratified by the su- 
preme authorities on both sides. As to any explanatory words which 
might have been used in some other treaty, wiiatever their effect 
might be on that treaty, their omission could not alter the obvious 
meaning of the 8th article of that by which the United States had 
acquired Louisiana; and the only question was, what was that mean- 
ing? The article simply provided, that Frencli vessels should forever 
be treated upon the footing of the most favored nations in the ports of 
Louisiana. Now there were not, properly speaking, anv most favored 
nations in the United States. 

'•Congress had, by a general law. proposed to all the nations with 
\yhom they had any commerce, a mutual repeal of discriminating du- 
ties. Every nation might have accepted that proposal, ajid it was in 
the power of France to avail herself of it whenever she pleased." 

" The plan had been carried into effect with several powers, cither 
by treaty stipulations, as was the case with Great Britain and Sweden, 
or only by an uiulerstanding, or mere miniicipal regulations, as in the 
case, of the Netherlands and of the free towns of Germany. In every 
case, tlie repeal was mutual, and the consequence of the general offer 
made by the United States. In every case, the vessels of the nation 
which 1' ranee now considered as more favoi-ed than herself, Mere put, 
in all the poi-ts of the United States, including those of Louisiana, on 
tlie same looting as American vessels, on the express and reciprocal 
condition that American vessels sjiould, in the poi-ts of that nation, be 
treated on tiie same footing as indigenous vessels. What France 
claimed was, to enjoy the privilege without fulfilling the condition on 
which it was granted; tiiat her vessels shcMihl be treated, in Louisiana, 
«n the Kame footing as American vessels, whilst American vessels 
coming from Louisiana should, in her ports, continue to be subject to 
any distnininating duties ehe might be pleased to impose. She asked. 



[91] 23 

in fact, to be treated not as favorably, but more favorably tban tbc 
nations she called most favored. The stipulation to place a country 
on the footing of the most favored nations necessarily meant, that, if a 
privilege was granted to a third nation for an equivalent, that equiva- 
lent must be given by the country which claimed the same privilege 
by virtue of such stipulation. A different construction implied a con- 
tradiction witli the terms of the stipulation. 

It was true, I allowed, that there were cases in which a difficulty 
miglit arise, that is to say, if a privilege was granted by the United 
States to a third nation, iti exchange for some favor or equivalent of a 
different nature from the privilege granted, and which France could 
specifically give. But this was not the present case; not only France 
could give the equivalent, but this equivalent was of the same nature 
with the privilege granted, and both were so intimately connected, 
that one could not be separated from the othei'. The moment an x\me- 
rican vessel should cease to be treated, in the ports of Great Britain 
or of the Netherlands, as a British or Dutch vessel, the British or 
Dutch vessels, as the case might be, would at once cease to be treated 
as American vessels in the ports of the United States. 1 have foimd, 
since my conversation witii Mr. Hyde de Neuvilie, that the treaty to 
which he alluded was tiiat of commerce between the United States 
and France of the 6th February, 1778: by the 2d article of which, it 
is agreed, that neither of the contracting parties shall grant a?iy par- 
ticular favor to other nations, in respect of commerce and navi- 
gation, which sliall not become common to the other party ti'lio shall 
enjoy the same favor gratuitonslif, if the concession rvas gratuitous, or 
on allowing the same compensation, if the concession rvas conditional. 
These last words, inserted for greater caution, define what w as meant 
by that stipulation; and if any inference was to be drawn from them, 
it would be, that the two nations had, in their first treaty, thought 
proper to state explicitly what they intended by the clause, of being 
placed on the footing of other (or most favored) nations, and that this 
explanation having once been given, the same construction must ever 
after be given to clauses of a similar nature, without its being neces- 
sary to repeat these explanatory words. And they have been accord- 
ingly omitted in every subsequent commercial arrangement between 
the two countries, as well in the 6th article of the convention of the 
30th September, 1800, as in the 8th article of the Louisiana treaty. 
But these words are mere surplusage; the clause would have precisely 
the same meaning without as with them; and their omission in an ar-. 
tide of a subsequent treaty, cannot, as I had observed to Mr. de Neu- 
vilie, alter the only construction of which that article is susceptible. 

" In answer to the objection that the article would, according i& 
our construction, be of no value to France, I answered generally that 
it would fulfil its avowed object, which was to enable her to trade at 
all times to New^ Orleans, on terms not more, but as advantageous, 
as any other nation. It might be our interest to agree to a mutual 
repeal of discriminating duties, or to any other mutual commercial 
privilege with England or some other nation, and not with France. 



24 [ 91 ] 

But if we had made such an agreement, France ha'Q a right, on ful fil- 
ing ilie reciprocal condition, to claim the same privilege in Louisiana, 
liowcver inconvenient that might be to m. We might be compciled, 
by an unsuccessful war, or induced by ])o}itical considerations, to 
grant some gratuitous favor to a third nation: and France would, in 
that case, immediately participate gratuitously in Louisiana, in the 
same favor, although we !iad no motive for granting it to her. The 
article did confer substantial and permanent advantages on her, with- 
out Incurring to the construction for which she contended." 



No. 9. — a. \ 

Baron Pasquier to Mr. Gallatin. 
[translation.] 

Pakis, September 13, 1820. 

Sir: I have submitted to the King the letter which you did me the 
honor to write to me on the 15th of last month, in answer to my note 
of tlie 31st of the month preceding: I have since recounted to His Ma- 
jesty the conference which I had with you upon the object of that cor- 
i'esp<nidence. His Majesty being informed, sii', of the impossibility 
of your entering upon an explanation of the difficulty which exists in 
America, relative to the execution of the 8th ai-ticle of the Treaty of 
50th April, 1803; and judgijig that the settlement of that difficulty 
cannot be separated from the negotiation of an arrangement of the 
respective navigation of the two states, considering that the article 
ahove mentioned secures special advantages to the French flag, in the 
ports of Louisiana, is resolved to send, with the greatest possible 
promptitude, to America, his minister, to he near the Federal Govern- 
ment. He has thought, and his opinion in that has been in accord- 
ance with your own, that it was a means of accelerating the negotia- 
tion — a thing the more desirable, because the present state can only, by 
heing prolonged, be injurious to the well known intei-ests of both coun- 
tries. 

I regret, sir, that this circumstance (h'prives me of the advantage 
of pursuing, directly, with you, an affair of that importance in which I 
am luippy to believe, that your superior information, and your spirit 
of conciliation, would have afforded all desirable facilities. 

Accept the assurances of the high consideration with which I have 
the Iionor to be, 

Sii", your most liumhle and most obed't servant, 

TASQUIER. 



[91] -15 

No. 9.— &. 
Mr. Gallatin to Mr. Vasquier. 

Paris, 1 5th September, 1820. 

Sir: I had the honor to receive your Excellency's letter of the 13th 
inst. by which you inform me that, since I am without instructions 
respecting the 8th arti^^Ie of tlie treaty of the 30th of April, 1803, it 
lias been determinetl that His Majesty's Minister to the United States 
should depart as soon as possible for America. 

Although I believe that a transfer of the negotiation to America, 
may, under existing circumstancos, accelerate a definitive result, your 
Excellency will be pleased to recollect that, so far from having in any 
manner countenanced an expectation that the Government of the Unit- 
ed States would accede to the construction put by that of France, on 
the 8th article of the Louisiana treaty, I have expressed a contrary 
opinion. 

1 have not been led to that conclusion, merely because I consider 
that construction as altogether untenable. Your Excellency has in- 
formed me that the subject had already been discussed, in writing, at 
"Washington, between His Majesty's Minister and the Secretary of 
State of the United States, who had argued against the construction 
contended for in France. 

Notwithstanding this discussion, the Secretary of State has not even 
alluded to that subject in the instructions which he has subsequently 
given to me in relation to an arrangement of the commercial relations 
of the two countiics. and to an adjustment of the difficulties which 
have arisen in that respect. I am thence irresistibly led to infer, 
that, after a thorough investigation, the view taken of the article by 
the Government of the United States, essentially differs from that in 
which it is considered by His Majesty's Government. 

These observations were necessary, on account of my own respon- 
sibility; but I pray your Excellency to ascribe them .principally to 
my earnest desire that the negotiation in which I have not been for- 
tunate enough to succeed, may, at Washington, be attended with a fa- 
vorable result. 

I request your Excellency to accept, &c. 

ALBERT GALLATIN. 



No. 10. 



Extract of a leiterfJVo. 165^ from Mr. Gallatin to Mr. Mams, dated 
1 9th October, 1820. 

" From conversations with him (Mr. de Neuville) and with the Duke 
of Richelieu, I am induced to believe that this Government refused to 
4 



26 [91] 

separate in the negotiation, the question relative to the Louisiana treaty 
from that of discriminating duties, less with a view to insist on their 
construction of the treaty than from the hope that the United States 
Avould make concessions in some other respect, in order to obtain from 
France a relinquishment of her pretensions under the article inquos 
tion." 



No. 11. 

Extract of a letter, J\i'*o. 164 ^ from Mr. Gallatin to Mr, Adams, dated 
&3d October, 1820. 

"I had the honor, on the 20th instant, td receive your despatch No. 
24, and addressed, on the 22d, to Mr. Pasquier, the letter of which 
a copy is enclosed. Its object, Mr Hyde de Neuville not having then 
left Paris, was to induce this government to give him rational in- 
structions. I had the same evening a short conversation with Mr. 
Pasquier, in which he used conciliatory language, but said that it 
appeared absolutely necessary to have some explanation on the 8th 
article of the Louisiana treaty, and drew a distinction between our 
old discriminating and our new tonnage duty, with reference to the 
privileges granted to France by that article. I have thought, upon re- 
flection, that there might have been some foundation for that distinc- 
tion, so far at least as our new tonnage duty exceeded tliat which it 
was intended to countervail. But the objection was not at all made 
on the receipt of the act of Congress; it was thought more eligible 
to retaliate than to discuss; arid France, after having laid her one 
hundred francs duty, has at least now no right to complain. 

Mr. de Neuville called on nie since the receipt of your despatch. 
Nothing very interesting occurred in the course of the conversation. 
I discovered, however, tliat, when he had spoken of the privileges 
granted to France by the Lousiar)a treaty as being inconsistent with 
tiie Constitution of the United States, he alluded to an argument 
which you had used. I cannot help thinking that there has been in 
that respect some misconception on his part. It is very clear that 
the United States could not make, now that Louisiana is a state, a 
treaty conlaining conditions similar to those in question; but I do not 
perceive that the constitution prevented them from acquiring on those 
terms Louisiana, when a foreign colony; still lessthat they could, 
without a compensation, be relieved from any obligation, on the 
ground that the constitution did not permit its performance. In 
your despatch to me you consider as contrary to our constitution those 
privileges only claimed by France, which are founded on an inad- 
missible construction of the treaty. And the only argument, which, 
it seems to me, can be drawn from' the constitution, is, that the article 
must remain as it is, and that the Government of the t nited States 
cantiot, even if so disposed, give to it a more extensive construction 
in favor of France than its literal and natural sense will admit.'* 



[91] %7 

No. 11— a. 

Mr. Gallatin to Baron Pasquier, 

Paris, 22d October, 1820. 

Sir: I had the honor, in my letter of the 15th of September last, 
to state to your Excellency the reasons which induced me to believe 
that the view taken by my Government, of the 8th article of the 
Louisiana treaty, essentially differed from that in which it seems to 
have been considered by His Majesty's Government. A despatch 
lately received from the Department of State at Washington, leaves 
no doubt on that point. 

The Secretary of State alludes in it to the correspondence between 
him and Mr. Hyde de Neuville — not for the purpose of giving me 
any instruction in that respect: for he does not seem to have presumed 
that this subject would be blended with that of the discriminating 
duties, or be discussed here^— but in reference to a protest intended to 
be made by His Majesty's consul at New Orleans, against the execu- 
tion of the act of Congress, of the 15th of May last. And he in- 
forms me, in the most explicit terms, that the construction put on the 
article in question by Mr. Hyde de Neuville, is considered as inad- 
missible by the Government of the United States. 

I have thought it my duty to make this communication to your Ex' 
cellency, because it thence appears extremely improbable, that those 
diflSculties which have produced a state of things so injurious to the 
commercial relations of the two countries, can be adjusted at Wash- 
ington, if his majesty's government shall insist on not separating that 
subject from the discussion of the article in question, and shall ad- 
here to that construction of the article which had heretofore been 
contended for. 

I request your Excellency to accept, &c. 

ALBERT GALLATIN. 



No. 12. 

Extract of a letter^ M. 172, from Mr. Gallatin to Mr Adflms, dated 

February Ut, 1821. 

"You will have seen by my despatch, No. 164, that I had an oppor- 
tunity, before Mr. de Neuville's final departure, to make use of your 
letters relating to the 8th article of the Louisiana treaty, and that 
this Government ought not to entertain any expectation of obtaining 
any concessions on our part in that reipect." 



28 ^ [91] 

No. 15. 

Extract of a letter from Baron de Keuville to Mr. Mams, dated Feb- 
ruary 25d, 1821. 

**As I am solicitous to accelerate as mucli as possible the progress 
of the negotiation, 1 now take the liberty of requesting an answer to 
the letter which I had the honor of addressing to your Department 
on the 16th of June, 1818, relative to the eighth article of the Louis- 
iana treaty. Should the Federal Government admit the interpreta- 
tion given to this article on the part of France, it would bf un- 
necessary to discuss the subject any further; but if, after a thorough 
investigation, it should still adhere to a contrary opinion, you will 
think with me, sir, that it is material to both parties, to know Jiow 
far they disagree on this very important article of the treaty. Both 
Governments having the same honest intentions, every point in dis- 
pute ought to be easily and speedily settled. What I ask, sir, evca 
in its most limited sense, is the right secured to France by the eighth 
article of the Louisiana treaty, and in what cases is our navigation to 
obtain its enjoyment. It would appear to me that the negotiators 
on either part, had but one and the same object, in inserting the 7th 
and 8th articles, which express intention was to secuie forever to 
French vessels in the ports of the ceded territory, a real advantage 
over those of all other nations, and in my opinion the very expres- 
sions of the article, establish in the most positive terms that intention 
of the negotiators." 



No. 14. 

Extract of aletterf JVo. 174 ^ from Mr. Gallatin, to Mr, Adams, dated 
29th March, 1821. 

"In a conversation with one of the ministers, whom I have reason 
to believe to be desirous that an arrangement should take place, |he 
suggested a prolongation for a limited time of the privileges which 
had, by the Louisiana treaty, been secured during twelve years to the 
French commerce in that quarter, as a substitute to the provision 
which allows permanent advantages, to it, and as a mode of concili- 
ating the diflfei'ence of opinion of the two governments on that sub- 
ject. Another person of great respectability, and very friendly to 
the United States, alluded to the necessity of some concession on our 
part, which miglit enable this government to come to an arrangement 
without abandoning altogether the ground they had taken." 



|_ 91 ] 29 

No. 15. 

Mr. Adams to Baron Hijde de J\''euville. 

Dkpartmeist of State, 

Washington, March 29, 182L 

Sir: By the 7th article of the treaty of SOth April, 180:3, hy 
which Louisiana was ceded to the United States, certain special 
privileges within the ports of the ceded territory were stipulated '\n 
favor of the sliips of Fiance and Spain, for tlie term of twelve 
years," and by the eighth article of the same treaty, it is further 
provided, that ''in future and forever aftei- the expiration of (he 
twelve years, the ships of France shall be treated upon the footing 
of the most favored nations in the port:i abovementioned." 

In your note of the 15th of Ueceniher, 1817, you demanded, upon 
the allegation of this article, that the advantages conceded to the 
English nation, in all the ports of the Union, should he secured to 
France in those of Louisiana. The citation of the words of the 
article would of itself be an answer to the claim. The stipulation 
of the 8th article is in its terms limited to grants of favors in the 
ports of Louisiana. The seventh article had secured to French and 
Spanish vessels in those ports, peculiar privileges, to the exclusion of 
the vessels of other nations; and the object of. the eighth article was 
evidently to provide, that, after the expiration of those twelve years, 
no such peculiar privileges should be granted in the same ports, to tlic 
vessels of any other nation, to the exclusion of tiiose of France, llie 
whole scope of both the articles, is, by their letter and spiiit, limited 
to special favors, and privileges granted in those particular ports. 

The claim of France, therefore, is not, and cannot be, by a7iJ/ con- 
struction of the eighth article, to enjoy in the ports of Louisiana, the 
advantages conceded to any other nation in all tiie ports of the LmoTj, 
butonly that the sMps of France should be entitled to the special ad- 
vantages conceded to the sfiips of other nations in the ports of Loui- 

^^^Were it then even true, that the English or any other nation en- 
ioyed, by virtue of general stipulations of treaties, advantages in all 
the ports of this Union, over other nations^ inasmuch as they would 
not be favors specially limited to the ports of Louisiana, or granted 
with any special reference to them, they could neither by the letter 
nor the spirit of the Louisiana treaty, give to France any just claim 
to the special participation, in those particular ports, of advantages 
there eiljoyed only by general arrangements, coextensive with the 

whole Union. ^, ^,„ , ,q,- 

But; in the answer from this Department, of the 23d December, 181,, 
to the'note of Mr. de Neuville,of the 15th of that month, it wasaver- 
red, and it is now repeated, that the ships o France a-'^' ^''f'. '^^^^ 
the expiration of the twelve years, stipulated by the seventh a.ticleot 



80 



[91] 



the treaty, uniformly have been, treated upon the same footitiff of 
the most favored nation in the ports of Louisiana- That thev will 
continue to be so. France may be assured, not only from that sa- 
cred reprd for the obligation of treaties, which is the undeviatinff 
principle of the American Government; but from a maxim founded 
in that justice, which is at once the highest glory and the soundest 
policy o( nations, that every favor granted to one, ought equally to be 
extended to all. 

It is no exception, but an exemplification of this principle, that the 
vessels of England, Prussia, the Netherlands, and the Hanseatic cities, 
pay in the ports of this Union, including those of Louisiana, no other 
or higher duties than the vessels of the United States. This is not a 
Javov, but a bargain. It was offered to all nations, by an actof Con- 
gress, of od March, 1815. Its only condition was rmwroci/i/. It 
was always, and yet is, in the power of France, to secure, this advan- 
tage to her vessels. It always depended upon her will alone, to abol- 

n 77^. r'"'""..""*'"-?. '^"*^'' "P^'-ating against her ships in the 
United States. Great Britain, Prussia, the Netherlands, the Han- 
seatic cuies, accepted the proffer, and granted the equivalent. Had 
l^rance seen fit also to accept it, the American Government would 
have hailed the acceptance, not as a favor, but as equal justice. They 
were far l/om anticipating that, instead of this, France would found, 
upon equal reciprocity offered to all mankind, a claim to special pri- 
vileges never granted to any. Special, indeed, would be the favor. 

been Jotn J' *" ^ ?''"" ""l ^'''' ^''^' ^"^ ^"^» "^ ^'^^^ which ha^ 
been sold at a fair price to another. 

English vessels, therefore, enjoy in the ports of Louisiana, no fa- 
vors, which are not equally enjoyed by the vessels of France: nor da 
tJiey enjoy any reduction of duties, which French vessels mikt n6t, 
at the option of their own Government, have enjoyed at any time since 

e3d<.t March, 1815. That France did not think proper to accept 
the offer, is not mentioned with a view to reproach. France consuU 
ed what siie thought to be her own interest, and, instead of reciprocity, 
aggravated discriminating duties to prohibition. She exercised 1^; 
rights. B.i If in levying those prohibitory duties, there was disfa- 
vor to the United States surely, as little can it be alleged, tha the 
^tention of reciprocal advantages to all, is a grant to al.y one of a 

JuiViSimUVn' 7^^^ ?!'^r^' deNenville, dated the 18th of 
June, 1818. to the letter from this Department, of the 23d of Decern- 

' ar?he';;3i e"' ' ''"rV'^ claimiJig/orewr, in the ports of W 
siana, the full enjoyment of every advantage enjoyed by any other 
nation, in all the ports of the Union, as the p?ice of equivalent advan- 
tages secured to the United Statas, still claims nothing gratuitous, 
nasmuch as the equivalent for this special advantage to F^ance/wa, 
already paid ,n the cession of Louisiana itself. This idea not on'v 
contradicted by the whole tenor of the LouisianaTreaty and by U e 
pec.al and obvious purport of the seventh and eighth articles, but I 
hesitate not to aver, that, if the American Government had bieved 



[91] 



31 



*'r}^ to 1,e miscentible of such a construction, and had those ar- 
those articles to be suscepiioie ^^ew/iole, price of the cession of 

tides alom been presented o them as the p ^^^^^^^^ ^^^ 

Louisiana, they never would l'^^^ '^^^^ f^^^ t he etfect of the cession of 
such terms would not only »^fy%tt would oto.w have been in di- 
the province in /wii soverngiitj; they ^""\' ""^g?'^^^^^^ they would 

;.ct\iolationoftheconstituUono th^^^^^^^^^ 

have been a surrender of oi^e of ^eh.^h^^^^ 

of th s whole nation. 1 hey ^o"'" "l.^th hut France, for any advan. 

from contracting with any P^^^/'^" ^J ^^^tte^ 

tage in navigation, however gtea , ^^"^ ^tl^ ^^'^ ^^ t, conclude a 

It would have been little short of «^ /-^'H^^^^^^^ ^ov what else 

commercial treaty wmi^^^^ of advantages 

are commerc a trea es, i la ^j^^^i^^^ f,„,„ others tor 

for equivalents? ^f ^ ^^^ ^' ^ ,^tl,e obligation of tl.is article, to be 

equivalents, were, by .y„^^\^^P5,"\ „ ., » ^^^,i,\ have been secured 

states, a formal abdication of tl.e.r own ^^^.^^^^^ .^ .^ 

^Tnt'^thaV n:Xr\ Itarr^^^^^^^^^^^^ i^ any respect as 

apparent, that "5'\'f ° ^.^lent for the cession of Louisiana. 1 he 

forming a part of the ^^"'™' „• „le„ts paid for it, were not even 
cession of Louisiana, and the equvaen^^^^^^^^ ^^^ ^^^^ 

included in the same t''^^^/ ./^'f^^X^^ of the same date. The 
the equivalents -^^l^^l^^.l'^^^^^^ in the treaty of cession, 

seventh and eighth ^^^^'^'f ^^J^'J*^, f^„,e ,ts. The three instruments 
and not in the conventions "J/^";;^;^;^^ oneai.d the same trans- 

sSisXiT^^^^i rat;, r, •::; 

tijj^f-tt!::^^;^:^.^^^^^ 

ed to this tacit evidence '" ^he '^^^^^^YJt'j.e motives by which it was 
article bears upon its face the a^^^^^J'^; .. j ..ecinrociilly advan- 
dictated. Its introductoi7 worlds are^J^t-^^^^ 
tageous to the commerce of Fance and Uie ^^^.^^^^ ^.^^^^ .^ ^^^^ 

ag^'e the communication of ^'th nations ^.p^ngements re- 

country ceded by the P''7^"\ ^^^^^^^^^^ agreed on." This is 

lative to the commerce of both "aU""« "'*^ ■ ^l iV)r its subsequent 
the motive specially ^^^'S^^Viil ant^^e > le c mmerce of France 
3tipulations. 1 he r^^'P-'^^J/;^,^,^' ffe, om-a^ement of their com- 
and the United States was the end the eco g ^^^^ ^^^^ 

munications/orahm^^^rffimei hecou.^^^^ ^^^^ ^^^.^._,^j,^ 

And the eighth article, followi gas a co^^^^^ 



8^ [ 91 ] 

>vorcl be found, importing that thoy were understood by either party 
as forming any portion of the equivalent for the cession. 

In the "note of Mr. Hyde de NeuviHe of the l6th of June, 1818, 
this claim of France to enjoy for nothing and forever, in the ports of 
Louisiana, every advantage whiclj the United States may concede for 
a full equivalent to any other nation, in all the ports of the Union, 
is supported by a supposed peculiarity in the phraseology of the ar- 
ticle, by virtue of which it is claimed. To support this pretension, 
it is asserted, that, "in uUtUe. treaties between France and the Unit- 
ed States, the condition of reciprocity is mentioned in the most formal 
manner; that they all expressly ^'aj, that the two contracting parties 
shall reci|)rocally enjoy the favor granted to armther nation, gra- 
iuitoiisly if the concession is gratuitous, or by granting the same com- 
pensdtioii if the concession is conditional." 

The mutual stipulations of being treated as the most favored nation, 
is not, in all the treaties between France and the United States, ac- 
companied by the express declaration that the favor granted to a third 
party shall he extended to France oi* the United States gratuitously, 
if tlie grant is gratuitous, and upon granting the same compensation 
if it be conditional. This explanatoiy clause is expressed, in terms, 
only in one ti'eaty between the United States and France, and that 
vasthe first treaty ever contracted between them; namely, the treaty 
of amity and commerce, of 6th Febi*uary, 1778, in its second article. 
It has never been repeated in any of the subsequent treaties between 
the parties. It was alluded to^ adopted, and applied to consHlar pre- 
eminences, powers, authority, and privileges, by the 15th article of 
the consular convention of the 1 4th November, 1788. But in vain 
will any such clause be sought for in the convention of 30th Septem- 
ber, 1800; the woids of the sixth article of which, areas follows: 
*< Commerce between the parties shall be free. The vessels of the two 
nations, and their privateers, as well as their prizes, shall be treated, 
in their respective jiorts, as those of the nation tiie most favored, and, 
in general, tUi two parties shall enjoy, in the ports of each otiier, in 
regard to commerce and navigation, the privileges of the most favored 
nation." There is not a vtord in this article, nor in the whole con- 
vention, saying that these favors shall be enjoyed freely, if freely 
granted to others, or uj)on granting the same condition, if condition- 
ally granted; yet who caji doubt tiiat this was implied in the article, 
though not expiessed? 

Tiie fact, then, in regard to this argument, being directly the re- 
Terse of the statement in the note of Mr. de Neuville, of I6th June, 
1818, it cannot escape his attention how forcibly the argument recoils 
upon itself. If from the uniform use of the explanatory clause, in all 
the piccediiig treaties, stated in the note as a fact, its omission in the 
Louisiana treaty could have warranted the inference that no such 
qualification was intended by it, with much stronger reason may it 
be concluded, that, as the parties had before repeatedly contracted the 
same engagement, at one time with, and at another without, the ex- 
planatory clause, but always intending the same thing, this variety 



[91] 



sa 



in the modes of expression, was considered by them as altogether im- 
material, aiid that, whetiier expresspdor not, no claini to a favor en- 
joyed by others, could justly be advanced by virtue of any such sti- 
pulation, without granting the same equivalent with which the 
advantage had been purchased. 

Tiiere is tlicretbre no necessity for supposing any forgetfulness on 
the part of tiie negotiators of the treaty of cession, nor of recurring 
to any supposed distinction between the construction applicable to a 
conveotion of commerce and to a treaty of sale. It has been proved, 
that neither the seventh or eighth article was ever understood by either 
party, as forming any partof tlie equivalent for the cession; that tlie re- 
ciprocity of the 7th article, is expressed upon its face; and tliat the 
eighth, as a consequence from it, only stipulated that after the period of 
special privilege in those special ports should have expired, no such 
privilege, in those particular ports, should be granted to other nations, 
without being made common to the vessels of France. If it be admitted, 
that, in a contract of sale, nothing can be understood by implication 
(sous entendu,) this principle could be no less fatal to the claim of 
France, than every other admissible rule of reason: for what implica- 
tion could be morcTiolcnt and unnatural'than that, by a stipulation to 
treat the ships of France on the footing of those of the most favored 
nation in thejwrts of Louisiana, the United States had disabled them- 
selves, forever, from purchasing a commercial advantage from any 
other nation, without granting it gratuitously to France? 

That the Senate, in 1803, did not, formally, object to the stipu- 
lations of tlicse 7th and 8th articles, must be ascribed to its never 
having entered into the imagination or conception of that bod y, that 
such a claim as tliat now^ attempted to be raised from it by France, 
was either expressed in, or to be implied from, thenh Whether the 
special privileges, granted for twelve years to the ships of France 
a)u! Spain, in those ports, were compatible 'with the Constitution of 
the United States, or wiih the other article of the freaty, by which 
the inhabitants of the ceded territory wei-e to be incorporated into 
the Union, and admitted, according to the principles of that Consti- 
tution, to the enjoyment of all the rights, advantages and immuni- 
ties, of citizens of the United States, might he, and was, a question 
to the Senate in deliberating upon the Treaty. It was a question of 
construction upon a clause of the Constitation; and that construc- 
tion prevailed, with which the terms of the Treaty were reconci- 
lable to it, and to themselves. But whether the claim now advanced 
by France, is reconcilable with the Constitution of the United States, 
is no question of construction, or of implication. It is directly re- 
pugnant to the express provision, that the regulations of commerce 
and revenue, in the ports of all the States of the Union, siiall be the 
same. 

The admission of the state of Louisiana, in the year 1812, on an 

equal footing tvith the original states, in all respects whatsoever, does 

not impair the force of this reasoning.* Although the admission of 

French and Spanish vessels into their ports, for a short remnant of 

5 



a4 C 91 ] 

time, upon diffcrrnt regulations of commerce and revenue, from 
those prescribed in the pjrts of all the other states in the Union, gave 
them a preference not sanctioned by the Constitution, and upon 
whicli tlie other states might, had they tliought fit, liave delayed the 
act of admission until the expii-ation of tlie twelve years; yet, as this 
V as a condition, of wliich tlie otlicr states might waive the benefit, 
for the sake of admitting Louisiana sooner even than rigorous obli- 
gation would iuive rerpiired, to tlie full enjoyment of all the rights 
of American citizens, this consent of the only interested party to 
anticipate the maturity of the ado]>ted ciiild of the Union, can be 
consiclercd in no other light than alVioidly grant, m advance, of that 
whirh, in the lapse of three short years, might have been claimed 
as of undeniable right. 

The Government of the United States have fulfilled, and will ful- 
fil, the eighth article of the Louisiana treaty, according to its plain 
and obvious meaning. The ships of France are and will be treated, 
in the ports of Louisiana, on the footing of the most favored nation. 
The ships r)f no nation enjoy any special favor in the ports of Louisi- 
ana. The ships of all nations are. in the ports of Louisiana, on the 
same footing, as in the ports of all the other states in the Union. 
The ships of all nations, in all the ports of the Union, enjoy the same 
advantages, which the nations to which they belong, concede to the 
veesels of the United States in return. The favor, and the only favor 
they enjoy, is reciprocity. That favor, the American Government 
extend tu French vessels, and ask no better of France than to ac- 
cept. But the American Government catmot grant, as a gratuitous 
favor to France, that which they have conceded for a valuable con- 
sideration to others. No such stipulation is expressed in the Leuisi- 
ana treaty: no such stipulation can, from all or any of its articles be 
justly inferred. In this, as in all their commercial relations with 
France, their most fondly cherished hope is mutual friendship, their 
most earnest desire equal reciprnciiy. 

I pray you, sir, to accept the assurance of my distinguished con- 
sideration. 

JOHN QUINCY ADAMS. 



No. 16. 
Baron de JVenville to Mr. Mams, 

[TIIANLATION.] 

March 30/^, 1821. 

Sih: I have received your letter, dated yesterday, in answer to 
mine of June I6th, 1818, and 23d ultimo. I shall have the honor to 



L913 35 

reply, and believe it will not be difficult fir me to shew that all my 
citations are correct. Not only all tlie Treaties between France and 
this country, (those, it is well understood, which could admit (if such 
a clause,) but even all the Treaties and Conventions between the Unit. 
ed States and European Governments, or nearly aV, express in posi- 
tive or in equivalent terms, what I have stated. 

I will add, that the force of my argument would not be impaired, 
even admitting the sense attributed by you to the paragrajjli which 
seems to have more particularly fixed your attention. 1 shall return 
in a future note to this point of the discussion, as well as to all the 
others, and shall draw my best arguments from the very acts of the 
Federal Government, and from the opinions of the most enlightened 
men in the country. A better source could not be resorted to. 

Allow me, Sir, in the mf^aii time, to make an observation, suggested 
b}' the following passings of your letter: " The Government of the 
United States have fulfilled, and will fulfil, the 8th article oftiie Louisi- 
ana Treaty, according to its plain meaning. The ships of France are, 
and will be, treated in the ports of Louisiana on the footing of the most 
favored nation " You had stated in your note of December, 1817: 
*' It is true, that the terms of the 8th article are positive and uncon- 
ditional; but it will be readily perceived, that the condition, though not 
expressed in the article, is inherent in the advantage claimed under it. 
If Bi'itish vessels enjoyed in the ports of Louisiana any gratuitous 
favor, undoubtedly French vessels would, by the terms of the article, 
be entitled to the same." 

In your letter of yesterday, you say that "from a maxim founded 
in that justice whicli is at once tiie highest glory and the soundest 
poliry of nations, that every favor granted to one, ought equally ta 
be extended to all." 

" It is no exception, but an exemplification of this principle, that 
the vessels of England, Prussia, the Netherlands, and the Hanseatic 
Towns pay in the ports of this Union, including those of Louisiana, 
no other or higher duties than the vessels of the United States. 
Tliis is not a favor, but a bargain." I cannot, I must C(»nfess, view 
those matters in the same light, nor especially can admit your con- 
clusion. But even admitting that, in reality, the four instances 
abovementioned are merri excepted cases; allowing that England, 
Prussia, the Netherlands, and tlic Hanseatic Tovvns, enjoy no gratu- 
itous privilege or right in the United States; that they are not favor- 
ed nations, and that, as you assert, Sir, This is not a favors but a bur- 
gain: Admitting even'your doctrine, that gratuitous ronccssions 
alone constitute what is called favor, whereby a nation becomes, in 
the ports of another, either a favored nation, or the most favored na- 
tion: Allowing all this, still, how would it be possible to reconcile 
the interpretation which the difference between the duties now paid in 
the ports of Louisiana by French vessels, and those paid in the same 
ports by the vessels of such nations as have neither Convention nor 
Treattj, nor have made any bargain with this Republic? 



36 C ^i ] 

I am not apprized that Russians, Spaniards, Portuguese, or other 
nations, having none but such like relations with this country, have 
been made to pay a duty of eighteen dollars per ton in the ports of 
Louisiana; and yet this duty is frequently required of the vessels of 
that nation, wiiich, by virtue of an authentic instrument, and of a po- 
sitive contract, is entitled to be treated in future and for fver in the 
said ports upon the footing of the most favored nation. Although 
nothing can be more clear, or better established, tiian the right of 
France; *< This is not a favor, but a bargafn." It was not without 
motive that the Charge d'AITaires of his Majesty took care to observe, 
in his letter of the 18th of July last, that this was not the case of 
a favor refused, but that of a charge imposed, by one party on the 
other. 

Such a state of things, whatever may be tlie interpretation given 
to tlie 8th article, is so injurious to the rights of France, and so very 
contrary to the equity and honesty of tlie Federal Government that 
I cannot but flatter myself that the answer now solicited to this letter, 
and to that of Mr. Roth, of the 18th of July, will be such as to give 
full satisfaction on this point. And if France should not be made to 
enjoy immediately the right which I claim, most assuredly she can- 
not be denied; in the mean time, the enjoyment of that which is ac- 
knowledged. 

I have the honor to be, Sir, &:c. 

G. flYDE DE NEUVILLE, 



No. 17. 
Baron de ^"enviUe to Mr. Adams, dated 

May 15, 1821. 

Siu: I have now the honor to ansv.er your letter of the 29th of 
March last. 

The terms of tlie eighth article of the Louisiana treaty are as fol- 
low: " In future, and for ever, after the expiration of the tv^elve 
years, the ships of France shall be tfeatcd upon the footing of the most 
favored nations, in the ports above mentioned;" meaning the ports of 
the territory ceded by France, Louisiana. It evidently results from 
the terms of this article, tliat the French nation is to be treated, in fu- 
ture, and forever after^ upon tlie footing of the most favored nations, 
not in all tlie ports of the United States, but in tliose of Louisiana. 

But, what is meant — what can be understood by the terms, being 
treated upon the footing of the most favored nations'^ 

Is there but one way of obtaining the right to be so treated? Or, 
may it be held by more than one title? Upon consulting the various 
treaties made between different nations, and particularly those which 
the United States have entered into with European powers, I find in 



[ 9i ] 37 

almost all of them, a definition of what is meant by being treated up- 
on the footing of the most favored nations, and these definitions are so 
precise, tiiat I do not see how any controversy can arise on that point. 
In most cases relating to the rights and privileges of the most favored 
nations, the parties even gown to explain, that the favor shall be free, 
if freely granted to another nation; or upon granting the eame com- 
pensation if the concession be conditional: from which \ conclude, 
tliat the right to be treated upon the footing of the mo^U favored nations, 
may be enjoyed in two ways, either gratiiltously or conditionally. 

You, moreover, appear tome, sir, to admit this very material point: 
you even declare, (and in this opinion I may readily acquiesce, I have 
at least no interest in opposing it,) that it is not necessary that the 
terms gratuitously or conditionally, be expressed in tlic agreement; 
meaning, I suppose, where the coisdition of reciprocity is stipulated. 
Alluding to the convention of tbe 30th of September, 1800, you say:— 
** There is not a word in the whole convention saying, that th^se fa- 
vors shall be enjoyed freely if freely grar>tcd. or upon granting the 
same condition if conditionally granted. Yet who can doubt that this 
was implied in the article, though not expressed?'' The article does, 
in my opinion, contain what I attributed to it, if not in express, at 
least in equivalent terms; but let us examine what you have stated in 
your answer. In the article, it is expressly said, that the two parties 
'shall reciprocally enjoy ^ each in the ports of the other, as far as regards 
commerce and navigation, the pririlcges of the most favored nations. 
It goes no further; it gives an ex})lanation as to gratuitous or condi- 
tional favors, and perhaps it was unnecessary here. Fet, do you add, 
W'hf) can doubt that this was implied in the article, though not expressed? 
This admission determines the first point, viz: tbat there are two 
modes of being treated upon the footing of the most favored nations; 
and tliat tlie rights resulting therefrom may be enjoyed either freely^ 
if freely granted, or conditionally, if granted upon condition to other 
nations. 

We shall soon have to examine whether France has or has not, 
from the very nature of tlie contract of 1803, a right to be treated 
in the ports of Louisiana, upon the footing of the most favored nations, 
unconditionally, and without further compensation on her part. This 
second question is of no less importance: but I think it right to de- 
tach it from that which now engages my attention, and the solution 
of which must precede all further discussion. Permit me, sir, here 
to suggest an observation which has struck me as being very forcible. 
If France, by virtue of the treaty of 1803, wliich secured her the 
rights and piivileges of the most favored nations, has had a right to 
enjoy every favor freely, if freely granted to other nations, or upon 
granting the same'conditiGn, if conditionally granted, upon what prin- 
ciple, after the treaty of 1803, which secures the same treatment in a 
still more solemn manner, should she be reduced to the enjoyment of 
only such favors as are granted f:'eel> to other nations? " If British 
vessels enjoyed in the ports of Louiiiiana any graUiitoug favor, un- 
doubtedly, French vessels would, by the terras of ihe article, be eu> 



38 [91] 

titled to the same." It appears to me, tli'at, after your explanation 
just above cited, it would be equally allowable to say, »' if Btitish 
vessels enjoyed, in the poets of Louisiana, any conditional fa. or, un- 
doubtedly Frenoli vessels would, by the terms of the article, lie en- 
titled to the same." 

Thus, sir, I hope you will admit, with me, the iirst question to be 
sufBcientIy%ettled. France is to enjoy, in future, a.n(\ forever, in the 
ports of the territory ceded by her, the privHes;es of the most fuvored na- 
tions; ami, as tiie treatment or favor which a nation may receive, is 
either free or conditional, it follows, that France has a ri^-ht to be treat- 
ed in Louisiana upon the footing of the most favored nation, either fi-ee- 
ly or conditionally, unless it be proved that her contract is to form 
an exception; that she has already /wi(/ for the privilege which she 
claims, and has, therefore, a right to be treated, without fnrthercom- 
;;f(tsai/ou. upon the footing of the most favored nation. This, sir, is 
what I think I can easily prove. 

In the mean time, it is evident not only that French vessels do 
not enjoy in the ports of Louisiana the privileges reserved by FriUice, 
but that they are even deprived of those which cannot be disputed. 

I liave already shown that, far from being treated upon tlie footivig 
of the most favored iiatiims, France at this time, is of all nations that 
which is most unfavorably treated in Louisiana; which forms a strik- 
ing Contrast with the precise stripulations of the 8th article of the 
Louisiana Treaty. 

But what nations are, (compartively with France) treated upon 
the most favoured footing, in the ports of Louisiana? All those. I 
answer, which enjoy in the said ports, whether freely or conditionally, 
by virtue of treaties or without stipulation to that elFect, any rights, 
favors, or ])rivileges, denied to France. Hence, as it so happens, at 
this time, that the vessels of four different nations pay in the ports 
of Louisiana no other or higher duties than those paid by American 
vessels, 1 have surely a right to claim the same advantage for our 
navigation, by virtue of the 8th article of the Louisiana Treaty. 

You will observe, sir, that I do not speak of all the ports of the United 
States. Finding this last phrase repeated several times, and under- 
lined in your letter of the 29th. I have some fear not to have been 
rightly understood, or I'ather not to have used expressions sufficiently 
distinct. F'rance has nothing to ask, she claims nothing, in all the ports 
of the United States, She has not to examine whethei' any or several 
nations indiscriminately enjoy in these, any riglits or pi'ivilcges, nor 
on what conditions such rights or privileges may liave been granted. 
But, as the ports of Louisiana are of the number of all the ports of the 
United States, and as France has a right to be treated in tliose upon 
the footing of the most favored nations, she claims that right as soon 
as it is found that the vessels of any other nation are treated tlicre 
more favorably than hers. But I find, sir, in your letter: — "were 
it even true, that the English or any other nation enjoyed, by virtue 
of general stipulations of treaties, advantages in all the ports of tliis 
Union, over other nations; inasmuch as they would not be favors spe- 



[Ql] 89 

cially limited to tlie ports of Louisiana, or granted with any special 
rcfeience to thcni, they could, neither by the letter nor the spirit 
of the Louisiiina Treaty, give to France any just claim to the special 
pai'ticipation, in those particular ports, of advantages there enjoyed 
only by general arrangements, co-cxtensi\ e with the whole Union." 
It seems to me that it would have been useless and even perfectly idle, 
to make any special mention of the ports of Louisiana in the treaties 
and conventions by which certain rights, favors, or privileges are 
granted in all the ports of the United States, since they are coujprised 
witliin the denomination of the ports of the United States. Giving the 
whole is giving every component part; and in such cases, the general 
term necessarily embraces eveiy particular denomination. Let us sup- 
pose a case. You make over to me conditionally the privilege of 
hunting on one of your estates, situated in a certain district; I am to 
enjoy this pri\ ilege if you grant it to others. Soon after, you sell or 
make over to one of my neighboi's, the privile;g-e of hunting on all 
your estates you hold in the same district. It is clear that my riglit 
does not, on that account, extend to all your estates, but it certainly 
does not include that which is specified in my contract or conveyance. 
The favor is general for my neiglibors, but as it I'egards me, is only 
speciali for the geneial term, I repeat it, necessarily embraces every 
piirticular denomination. Sucii matters it is not thought necessary to 
explain, because it is not expected that they can ever be subject to 
discussion. But, suppose further, that tlie right which I so justly 
claiu), was not even granted by you; that I held it only in my own light; 
su})|)pse it to be an express reseiTution which I had thought it proper 
to make on disposing in your favor of that estate, which I liad con- 
sented to sell merely to oblige you and to suit your convenience; if I 
yielded to your instant and pressing solicitations, if, in order to per- 
suade me to sell this estate, you had gone so far as to offer me, not a 
mere condtional right of chace, but that privilege, free from all charg- 
es or conditions, to enjoy it with you, to the same extent as yourself, and 
forever: If J can prove tliis last assertion by your own documents, 
you will surely admit, Sir, that this is an indisputable, sacred right, 
rather in the nature of property vested in me than a mere privilege 
over yours. Tiiis is not a favor but a bargain. 

What may now ap})ear a mere assertion, shall hereafter be proved. 
<' You do me thehonoi- to state'* '• The stipulation of the eighth article 
is in its terms limite;i to grants of favors in the ports of Louisiana. 
Tlie 7th article has secured to French and Spanish vessels, in those 
ports, peculiar privileges, to the exclusion of the vessels of other nations; 
and the obje( t of the eighth article wai evidently to provide that, after 
the expi.atitm of those tweh e years, no such peculiar privileges should 
be grdiited. in the same ports, to the vessels of any other nation to the ex- 
clusion of those of France, the whole scope of both articles is by their 
letter and spirit limited to special favors and privileges granted in 
those particular ports." I must confess, sir, that, so often as I have 
read the vMghrh arti. le, I cannot discovei that it evidently states that, 
after tiie expiration of those twelve years, no such peculiar privileges 



40 r^i] 

filioiiltl be granted, in the same ports to the vessels of any other nation, 
to the exclusion of those of France. The article states — nothing can 
be more clear, in future and forever, after the expiration of the twelve 
years, the ships of France sliall be treated npon the fooling of the 
most favored nations in the ports ahovc mentioned. Nothing what- 
ever is said about peculiar favors 'granted in the same ports to the vessels 
of any other nation; why then should we attrihnte to tiie article what 
it (Joes not contain? I will add, what it could not express. And this I 
sliall now prodeed to prove. When France disposed of Louisiana, 
she cei'tainly was entitled to reserve any rights whatever in that pj'o- 
viiice, whether special, gratuitous^ limited, or unconditional; she sold her 
own pi-uperty, and had a right to fix its price, as the other jiarty was 
free to accept or to decline the offer. I'hc express reservation made 
by her in the firstplace, for twelve years, and then, on condition of cer- 
tain ^M^ntH, forever after, was no more than a part of the price of the 
territory ceded; and by no means a favor granted by one party and 
received by the other. 

"This stipulation was a part of the price of the territory; it was a 
condition wliich the party ceding had a right to rerpiire, and to which 
we had a right to assent; the right to acquire involved the right to give 
the equivalent demanded." I shall have occasion to revert to this 
opinion of one of the most distinguished men of the country, and 
which is so much in point. But to proceed with my argument: it is 
easy to conceive that France was entitled, when disposing of her pro- 
perty, to reserve sach rights as she pleased, xviih or ivitliout recipro- 
city, for a limited time or forever; *' this was a part of the price of the 
territory:" hut, if as you observe, sir, there is an express provision 
in the constitution that the regulations of commerce and revemie in 
the ports nf alt the states of the fjnionshall be the same, it evidently fol- 
lows til at no nation can acquire by treaty or connnercial convention, 
in the ports of Louisiana alone, the advantage w hich France enjoys 
there by special title, by virtue of a bargain and sale; wiiich in- 
strument is singular, from its \cry nature, and cannot be repeated 
in favor of any nation, whatever may be its connexion or commercial 
interests with the United States; at least so far as respects the terri- 
tory ceded by Fi'ance. If, therefore, no other nation can acquire in 
the ports of Louisiana alone, w hether gratuitonshj or conditionally, the 
special favor, or to speak more correctly, the right which France has 
thought proper to reserve in those ports' '< in future and forever after," 
surely I am authorized to maintain not only that the 8th article does 
Jiot, but even that it could not, admit of the meaning which is attribut- 
ed to it. Can it be supposed that the American negotiators iiad pro- 
posed to France to reserve an advantage or privilege which, accord- 
ing to the Federal Constitution, could never be realized? To give 
such an interpretation to this article would not be doing justice to 
their lionesty; it surely must have some other meaning; why not then 
adopt that w iiich is most natural. * We do not presume, says Vattel, 
that sensible persons had nothing in view in treating together, or in 

* Vattell, B, II. Ch. XVII. § 283. 



[91 1 4£ 

forming any other serious agreement. The interpretation wliich ren- 
ders a treaty null and without effect cannot then be admitted. 

" Every clause should be interpreted in such a manner, as that it 
may have its effect^ and not be found vain and illusive."* Let us then 
leave to the eighth article its true sense; its expressions are clear and 
distinct; and it is admitted that, inthe interpretation of treaiies.pads, and 
2u-omfses, we ought not to deviate from the common use of the language :j 
we also know that the first general maxim is, that il is not allowable 
to interpret what has no need of interpretation;^, and you allow, Sir» 
in your letter of the 23d of December, 1817. that the terms of the Sth 
article are positive and unconditional. It being admitted that the 
terms a!*e positive and unconditional, and since, in order to ascertain 
the trne sense of a contract, attention ought to be paid, ^^principalhj to the 
words of him who promises^ and since, on every occasion, when a per- 
son has, and ought to have shewn his intention, we take for true against 
him, what he has sufficiently declared,^ what motive can there be, for 
denying France a I'ight established in positive and unconditional 
terms, more esj)ecially when the intention of the American nego- 
tiators, of those who promised, is sufficiently declared and perfectly 
manifest? Ou this subject, it will soon be shown that the 8th article, 
which, in ilself, is so precise as to require no corroboration, has, witlial, 
by way of corollary, a document calculated to rentove every possible 
doubt, if any could still remain. But, sir, you seem to think that 
the 7th and 8th articles have never been, (in any respect) considered 
* HIS forming part cf the equivalents fm- the cess'ion of Louisiana, and 
that the cession was in one treaty, and the equivalents in two separate 
conventions of the same date;" and finally, while admittiisg that the 
three instruments form but one whole, as it is expressly dechired, 
you add, ^'but the very form of the arrangements adopted by the par- 
ties, shews their comhmi intention to regxdate the cession by one com- 
pact, and the equivalents given for it by others." If we are ever to 
deal in conjectures, why should we not say, for there would seem to 
be more ground for the assertion, that the 7th and 8th articles of the 
convention are the equivalents, and the two subsequent instruments 
merely accessary, and the compliment of the bargain? We shall soon 
find, that it is quite allowable to consider, as a mere accessary, what 
you, sir, regard not only as the principal part, but even as the whole 
of the compensation. But let us set every commentary aside, the con- 
vention of 1803 cannot give rise to any mistake. The 7th and 8th 
articles established, without the least ambiguity, the nature and condi- 
tions of the rigiits reserved by France: the 9tii article coming next, 
because what is most important should be settled before points of mr- 
nor consequence, sutiiciently shews that the two supplementary instru- 
ments are only matters of execution. They, in fact, contain calcuJa- 
tionsof banking and exchange; and details of liquidation which could 
not well have been comprised in the convention; and it is even, more- 
over, fully explained, that those two instruments signed ou the same 

*VAttelI. B. II. ch. xvii. §283 ndcm, id. id. 267. 

fldem, Id. id. 272. It^lem, id. id. 266, 

4ldem, id. id. 263. 
6 



42 r ^1 ] 

day, ^* are to hove their exemtmn in the same manner as if they had 
been inserted in the principal treaty, that they be ratijied ii^^the same 
form, and in the same time and jointly." 

The question, it ujipcars to me, may be viewed in two different 
lights, and \vill still, in either case, e([ually resolve itself in favor of 
the claims of Fiance. In the first place, France maybe considered 
as ha\ing reserved certain rii2;iits of property, on disposing of her 
sovei-eii^nty in Louisiana: and this would apj)ear the more cori'cct 
view of the case: for, stiictly speaking, the 7th and 8tli articleu are 
not Ihc equivalents of the cession accordi«ig to the true sense of the 
treaty, as understood in 1803. In the other supposition, considering 
the rth and Btli articles as part of the equivalents, tiie rights and 
privileges therein secured to France will form, with the fifteen mil- 
lions dollars, the full and entire compensation for the territory ceded 
by her. 'Ihe privileges secured by the rth and 8th articles are still, 
in either case, a riglit of property, of the most sacred nature. 

*♦ This is not a favor, but a bargain. This is not a free gift, but the 
fair price of that which has been sold.'* But suffer me, sir, to ob- 
serve, that it is entirely erroneous to suppose that neither the seventh 
nor eighth article was ever understood as forming a part of the equiva- 
lent for the cession:" Not only it was understood they did, and was so 
meant by the negotiators, but one of tliem, Mr. Livingston, while 
offering to the French Government the express reservation of the 
1 ights and privileges in question, as I shall hereafter prove, went so 
far as to say that, by those meajis, France would enjoy all the advan- 
tages of the colony, without incurring the expense of maintaining it. 
Let US now add to Mr. Livingston's expressions, the formal opi- 
nion of Mr. Randolph, and it will be no longer possible to maintain 
that neither the 7th nor Sth article was ever considered as forming 
part of the equivalent for iUe tGvr\U)vy Ci'dQ{\ by France. "I regard 
this stipulation only as a part of the price of the territory; it was a 
condition which the party ceding had a right to require, and to which 
we had a right to assent. The right to acquire involved the right 
to give the equivalent demanded. "( I) In your letterof the 29th of 
Match last, as well as in your note of the 2Sd of December, 1817, 
you advance that, if France could claim/oi-ercr in the ports of Louis- 
iana, a privilege which could be denied to her in other ports of the 
United States. France would, in such case, have transferred only an 
imperfect sovereignty to this republic. I have already endeavored to esta- 
blish, (letterof June J 6th, 1818,) that sovereignty shouUi c\ev be dis- 
tinguished from property; in support of which, I could cite many in- 
stances of transfers of »fuU and entire sovereignty ^ with the reserva- 
tion of certain rights or privileges, in the nature of that which Fi-ance 
holds in the ports of Louisiana. But the ^ery terms of the article 
make it perfectly useless to discuss this point. The expression 
forever is sufficiently explicit. In the ports of the territory ceded, 
surely impliis that France is entitled to the privilege claimed by her 
in Louisiana only, and it may therefore, at all times, be denied her 

(1) Congress, House of Representatives. Mr. Randolph's dtbate of the Lou- 
isiana treaty, Tuesday, October 25, 1803. 



[911 



48 



in the other ports of the United States, unless some other treaty or 
convention should intervene. You persist, also, in helieving that the 
right claimed by Frairce, is in contradiction with the constitution of 
the United States, which declares that " all duties, imposts, and ex- 
cises, shall be uniform throughout the United States, and that no 
preference shall be given by any regulation of commerce or revenue 
to the ports of one state over those oi another.*' I could add several 
very plausible arguments to those which 1 have already made against 
that supposed i»iconsisf«u'i/j I might, perhaps, also, contend, with some 
advantage, against the manner in vvliich you explain tl»e admission of 
the state of Louisiana on an equal footing with the original sfates, 
in alt respects whatever, in spile of the privilege which France and 
Spain still enjoyed in its ports. I think I should have some right to 
observe, that, in all cons/i<ji^io«r;/ questions, no modification is admis- 
sible, HJid nothing is to be assumed except according to tliC forms re- 
quired by the constitution itself; that representative Governments 
scarcely admit of acts of mere courtesy; thivt they have the law alone 
in view; and that if is, therefoi-e, to he presumed, that Congress would 
not have emancipated, before its maturity, the adopted child of the 
Union, nor have given him a pvefcrence not sanctioned bij the constitu- 
tion, (1) if, in fact, the measure could have been considered as illegal. 
But, sir, my Government /ms nothing to do with the question of con- 
stitutionalitj^^; it is, therefore, [n'oj>er for me to decline discussing it, 
and I shall be satisfied with recallittg some very respectable opinions 
which militate in favor of my positions, or against what is objected to 
them, and destroy all idea of inconsistency between the Zth and 8th 
articles of the Louisiana treaty and the Federal Constitution. 

(2) Mr. Rodney — '* It is contended that the United States have no 
right to purchase territory: that they have no right to admit the peo- 
ple of Louisiana to a participation of the rights derived tVom an admis- 
sio}i into the Union; and that a peculiar favor is about being granted 
to the j)orts of New Orleans, in violation of the Constitution. In the 
view of the Constitution, the Union was composed of two corporate 
bodies, of states and territories; a recuri-ence to t!ic Constitution, 
will shew that it is predicated on the principles of tiie United States, 
acquiring territory either by war, treaty, or purchase. Tlierc was 
one part of that instrument within whose capacious grasp, all the.se 
modes of acquisition were embraced. By the Constitution, Congress 
have power to lay and collect taxes, duties, imposts, and excises, to 
pay the debts and provide for the conmion defence, and general wel- 
fare of the United States. To provide for the general welfare; the 
import of these terms is very comprehensive indeed. If this general 
delegation of authority be not at variance with other particular pow- 
ers sj)ecially granted, nor restricted by them, if it be not in any de- 
gree comprehended in those subsequently delegated, I cannot, said Mr, 
Rodney, perceive why. within the fair meaning of this genei-al provi- 
sion, is not included the power of increasing our tcri-itory, if neces- 
sary, for the general welfare or common defence. Suppose, for instance, 

(1) It cannot, ir.ost assuredly, be correct to violate the prliiciples of the Constitu- 
tion /or a day.— Mr. Griswold, "louse of Reprtsentatives, debate 95 Sber, 1803, 

(2) Debate, 25 8ber 180.", House of 11. pVe.<-n\vives. 



44 C^i ] 

that Great Britain should propose to cede to us, the Island of New 
Providence, so long the seat of pirates preying upon our commerce, 
and the hive from which tliey have swarmed — will any gentlemen say 
that we ouglit not to embrace the opportunity presented, as a defence 
against further depredations? Suppose the Cape of Good Hope, where 
our East Indiainen so generally stop, were offered to be ceded to us 
by the nation to which it belongs, and that nation should say, on oup 
possessing it. you shall declare it a free port. Is there any member 
who hears me, that would contend that we were not authorized 
to receive it, notwithstanding the great advantages it would ensure 
to us.'' 

'* There is another sound answer to the objection of gentlemen: 
thisis property ceded to lis by the power ceding it with a particular re- 
servation.^^ 

(1) Mr. Smilie — " If the prevailing opinion shall be that the in- 
haoiiunts of the ceded Tcrntoj-j, cannot he admitted under the consti- 
tation, as it now stands the people of tlie United States can, if they see 
fit apply a remedy by amending the constitution, so as to authorize 
the adniission.'' 

(2) Mi-. Crowninsliield. — •* It surely cannot be unconstitutional, to 
receive t.'ie ships of France or Spain, in the ports of the new territory, 
upon any terms whatever. It is a mere condition of the purchase, and this 
lioiise may or may not agree to it. Being a mere commercial regula- 
tion, we have tlie power to give our assent or dissent to the article in 
question; for I hold it to be correct doctiine, that this House, by the con- 
stitution, have the power to regulate commerce w ith foreign nations, 
as well as with the Indian Tribes, and that, whenever the President 
and Senate make atreaty, involving any commercial points,our consent 
is absolutely necessary to carry the treaty into effect. By giving our as- 
sent, we do not injure the riglit of the other portsin theAtlantic states, 
as the privilege is extended only to ports in the ceded territory. I con- 
sider the eastern or carrying states, as particularly and deeply interested 
in tJie acquisition of Louisiana; it is true, their ships already visit al- 
most every part, but under many restrictions, and I wish to see them 
sailing on the INlississippi, \\ ithout molestation or restraint." 

*' 1 am in favor of adopting these treaties, and they shall have mj 
hearty support." 

(3) Mi-. Randol])h. — *<The unconstitutionality of this treaty, 
is atteuipted to he sliown by the following quotation from 
that instjtiment: No preference shall he given to the ports of 
one state over those of another state, &c. &c. New Orleans, 
tliei-efore, will enjoy an exemption. She is therefore a favored 
port, in contradiction to the express letter of the Constitution. To 
me, it appears that this argument has much more of ingenuity than 
of force in it; more of subtlety than of substance. Let us suppose that 
the treaty, instead of admitting Fi-encb and Spanish vessels, on the 
terms projfoseii, merely convenanted to admit Amei-ican vessels on 
equal terms, with those of France and Spain. If we acquired this 

(1) Debate on the Lni'siana treaty, Tuesday, 8ber 25th, 180". 

(2) Dfhatc on tlie !,< u siana treaty, Tuesday, Sber 25tli, 1803. 

(3) Debute on the Louisiana treaty, :ruesdav, Sber 25lh, 1803. 



[ 91 ] 45 

light, divested of the country, it would have been considered and just- 
ly, as an inipoi'tant privilege. Annex the territory tu it, and you can- 
not accept it! You may, indeed, acquire either the commercial privi- 
lege or the territory, without violating the Constitution, hut take them 
both, and that instrument is infringed ! 

" I regai'd this stipulation only as a part of the price of the territory. 
It was a condition wliich the party ceding had a right to require, and 
to which we had a right to assent. The riglit to acquire, involved the 
right to give the equivalent demanded. Mr. Randolph said, that he 
expected to hear it said in the course of tlic debate, that the treaty in 
question might clash with the treaty of London, in this particular: 
he would, therefore, take this opportunity in remarking, that the pri- 
vilege granted to French and S]»anish bottoms, being aparf of the con- 
sideration for which we had obtained the country^ and tlie Court of Lon- 
don being oilicially appi'ized of the tiansaction, and acquiescing in the 
arrangement, it would ill become any member of that House to bring 
forward such an objection," 

(1) JNIr. Adams. — " But it has been argued that tliebill ought not to 
pass, because the bill itself is an unconstitutional, or, to use the words of 
the gentleman from Connecticut, an extra constitutional act. It is, 
thei-rfore. say they, anullity. We cannot fulii! our part of its conditions, 
and on (vur failure in the performance of any one stipulation, France may 
consider herself as absolved from the obligations of tiie whole treaty 
on hers; I do not conceive it necessary to enter into the merits of the 
treaty, at this time, The proper occasion for that discussion is past; 
hut, allowing even that this is a case for which the Constitution has not 
provided, it i!oes not, in my mind, follow, that the treaty is anullity or 
that its obligations either on us, or on France, must necessarily be 
cancelled. France never can have the right to come and say, I am 
dischai'ged from the obligations of this treaty, because your Presi- 
dent and Senate, in riitlV} ing it, exceeded their powers; for this 
would be interfering in tlie internal arrangements of our Govern- 
ment. It would be intermeddling in.questions with which she has no 
concern, and which njustbe settled entirely by ourselves. The only 
question for France, is, whether she has contracted with the Depart- 
ment of our Government authorized to make treaties; and, this being 
clear, her oidy right is to require that the conditions stipulated in our 
name, be punctually performed; I trust they will be so performed, and 
will cheerliillv lend my hand to every act necessary for the purpose; 
Jor Iconsider'ihe object as of the highest advantage to us." 

The opinions I have just cited, have so nnich weight, that I shall not 
attempt to support them by further authority, and shall consider it as 
sufficiently established: 

1st. That the rights reserved by France are, in fact, properly 
vested in her: or, in other words, that the territory of Louisiana is a 
propertij ceded 7nth particular 7'eservation. 

2dly. That if, in 1803, the Louisiana treaty was deemed unconsti- 
tutional, bv some of the distinguished characters of the United States, 
the great majority of Congress declared itself in favor of a contrary 
doctrine. 

(1) Senaie debate, Nov. 3i1, 1803. 



46 [ 91 J 

Sdly. That the (jucstion of consHtutiQualUij is, Jiml should be, foreign 
to France, and that her only right is, to require that the conditions 
stipnlated he punctually and faitlifally perlbrmed. 

The French Government desires no more; and has, therefore, I 
think, a riglit to expect, that a claim so well founded will cease to be 
disputed. 

I read in your letter, '* Nor is the proof, that these articles formed 
no part, in the estimation of either of the parties, of the equivalents for 
the cession,confined to this tacit evidence in the forms of the negoriation. 
Tlie scventli article bears upon its face the avowal of the motives by 
wliich it was dictated. Its introductory woi-ds are: » Js it is recipro- 
cally advantageous to the commerce of France arul the United States, to 
encourage the communication of both nations, for a limited time, in the 
cx)untry ceded,' &c. kc. &c The reciprocal advantages to the commerce 
of France and the United States was the end; the encoui-agement of 
their communications /or a /imifed time in the country ceded, were the 
means; and tlie eiglith article, following as a corollary from the 
fMiventh," &:c. &c. &c. 

I think I have ali'eady sufficiently sliewn, that the two parties in 
the contract had but one and the same mode of undcrstauding the 7th 
and 8th articles; but, even if I had not, in support of my opinion, those 
already cited, and that of Mr. Livingston, which I shall soon have 
occasion to produce, still would my position be incontrovertibly 
proved by the very terms of tiiose articles. 

You cite, sir, the introductory expressions of the seventh article. 
Allow me to invite you to examine its conclusion, which appears to 
me more explicit, and leaves no doubt as to the true intention of the 
negotiators. 

But perhaps it would be still hotter to cite the whole article. It 
speaks for itself, and sufficiently explains what induced the negotia- 
tors to fix the duration of the privilege conveyed by the seventh arti- 
cle, and to assign no limitation to the right of property secured by 
tJic eighth. 

''As it is reciprocally advantageous to the commerce of France 
and the United States to encourage the communication of both nations, 
for a limited time, in the country ceded by the present treaty, until 
general arrangements relative to the commerce of both nations may 
be agreed on; it has been agreed between the contracting parties, 
that the French ships, coming directly from France, or any of her 
colonies, loaded only with the produce or manufactures of Prance, or 
her said colonics; and tlie ships of Spain, coming directly from Spain, 
or any of her cxdonies, loaded only with the produce or manufactures 
of Spain, or her colonies, shall be admitted, during the space of twelve 
years, in the ports of New Orleans, and in all other legal ports of? 
entry within the ceded territory, in the same manner as the ships of 
the United States coming directly from France or Spain, of 
any of their colonies, without being subject to any other or greater 
duty on merchandise, or other or greater tonnage, than those paid 
by the citizens of the United States. During the space of time above 
mentioned, no other nation shall have a right to the same privileges 
in the ports of the ceded territory. I'ho tM-eJ ve years shall commence 



[913 



47 



three months after tlie exchange of ratificatians, if it shall take place 
in France, or three months after it shall have been notified at Paris 
to the French Government, if it shall take place in the United States. 
It is. howevci-, well understood, that the object of the above article is, 
to favor the manufactures, commerce, freight, and navigation, of France 
and if Spain, so far as relates to the importations that the French and 
Spanish shall make into the said ports of the United States, without 
in any sort affecting the regulations that the United States may make 
concerning the exportation of the produce and merchandise of the 
United States, or any rigiit they may have to make such regulations." 
What appears most clearly deducible from the terms of this article 
is, that it was thought advantageous to tlie commerce of France and 
of the United States to encourage, in a verij special manner, the com- 
munications of the two nations in the ports of the territory ceded; 
that the piincipal object v\as to favorthe manufactures, the commerce, 
and the shipping, of France and Spain. I can see no other advantage 
resulting from the 7tli article for the United States, and it must be 
admitted that its stipulations are, in fact, advantageous only to 
France and to Spain." ]No reciprocity is granted to the United States, 
either in the ports of France or in those of Spain. Their communi- 
cation with France will, it is true, be more frequent, but only in the 
ports of the ceded terriforij. Perhaps the ai'ticle might have been worded 
with more care, but, after all, it expresses no more than I have 
stated* If the avowed object of the article was to favor, in a special 
manner, not only the commerce and navigation of France, but like- 
wise the commerce and navigation of Spain, without any reciprocal 
stipnlation for the United States, it is easy to discern what induced 
the American negotiators to demaml that the privilege which France 
iims not alone to enjoy in Louisiana should he limited in its duration; 
more especially as, during that time, no other tuition could be admitted 
to enjoy the same favor. But where the privilege ceased to be common 
to Spain, the French Government, while consenting to modify it as 
by the eighth article stipulated for the perpetual and unconditional 
enjoyment of the right of property thus reserved, the eighth article 
does not, as did the 7th, stipulate that other nations shall not be ti^at- 
cd as favorably as those of France in the ports of the territory ceded 
by her; such a condition could be imposed but for a limited time. 
But it was natural that, when yielding to the solicitations of the 
American negotiators, the French Government consented to cede 
Louisiana, it should secure to France the right never to be treated 
more unfavorably than any other nation in the ports of her former 
colony, whether those favors be purchased or not by such nations; 
that the transaction which, on the part of France, was at once a great 
sacrifice and a striking proof of her friendship for these United 
States, should not, in the end, turn to her detriment, but should, at 
least, secure some lasting advantage to her commerce and naviga- 
tion. All this is not mere conjecture of ray own; the facts are posi- 
tive and clear; and every doubt must cease after attending to the 
following sentiments, not of the French negotiators, but of Mr: 
Livingston himself, iu the memorial addressed by him to the French 



48 L 91 J 

Government on this question. Is it advantageous for France to take 
possession of Louisiana? He does not confine himself to proposing 
that France should reserve, forever, and without rediwodty jor the 
United States, tlie I'ight slipulatcd in the eigSith article, hut even that 
which she suhsequejitly held hy the 7th article for twelve years only. 
♦'Does France wish," says Mr. Livingston, -'to iiitroduce more 
easily her productions into the western country; docs she desire to 
accustom its iidiahihmts to her wines and manufactures, and to con- 
quer tlie prejudices which the Americans entertain in favor of Eng- 
lish goods, kc. kc. ike. All this can be accomplished onl:j by the ces- 
sion of New Orleans to the United States, with tiic reserve of the 
right of entry, at all times, for the ships and merchandises of France, 
free from all other duties thasi those paid hy American vessels, liy 
those means, American merchants estahltshed in New Orleans will 
be interested in her trade; their capital, instead of heing sent to Eng- 
land, will go to France, who will thus ciijoy all the advantages of the 
colony, without incurring the expense requisite to support it, and the 
money which America, by her industry, has drawn ftom Spain, will 
be restored to France, which England, not enjoying the same advan- 
tages, and paying higher duties, could not furnish them at tiie same 
price." This passage of the memorial of the minister from the United 
States, is sufficiently clear, and we shall see that he, furthermore, 
takes care to corroborate its evident intention. Let us contijuie to 
follow the course of his argument. *'The possession of Louisiana," 
does he say, '* is very important for France, if she draw s from it the 
only advantage which sound policy would seem to indicate. I speak 
of Louisiana only, not including Florida, because I do not consider 
it as forming part of the territory ceded, as she may, hy means of the 
cession, have a free trade on the Mississippi, if she knows how to avail 
herself of the cii'cumstancc by an understanding with the United 
States. She will find a market for a great variety of goods when she 
shall have accustomed the inhabitants of the western country to pre- 
fer them to English goods, which she can only accomplish by giving 
them at a lower price, and this she can obtain only by giving Ame- 
rican merchants an interest in selling them, in employing there their 
capital, and by inducing the American Government to give them the 
preference. All this can only be accomplished hy the cession of New 
Orleans to the United States, reserving the right of entry, at all 
times, free from all other duties than those paid by American vessels, 
together with the free navigation of the Mississippi. This will give 
her vessels the advantage over those of all other nations, and will not 
only retain, but increase tlie capital of the city of New Orleans, and 
hence, provisions for the islands will be purchased there at a lower 
rate, and French manuiactui*es will be more easily introduced into 
the western country, which the United States will have no interest 
ii! preventing, every cause of rivalship between the two nations being 
completely removed. Thus will France command respect without 
inspiring fear to the two nations whose fiiendship is most important 
to her commei'ce, and to the preservation of her colonics; and all these 
advantages will be secured without incurring the expense of esta- 
bli>shments which ruin the public treasure, and divert its capital from 



[91] 



49 



its true object.'* What! Mr. Livingston, in order to induce France 
to cede the territory of Louisiana, offci'S !ier more! frosn benevolent 
motives, established in the very treaty itself, she subsetpiently con- 
sents to accept or to reserve less, and even this shall be contested! 
The article which secures this to Ijer sliall be said to have no mean- 
ing, and be supposed to have exprcL-sed a nteie inipossibiiiiy ! J will 
here dwell upon an idea tending, to explain liow such doubts could 
Ijave arisen. Mr. Living!^ton's iueinoriiil tnust have been lost sight 
of. 1 shall now proceed to discuss, as brieiiv as possible, the error 
which you think you have discovered in the citation of my note of 
June 16th, 1818. On tiiis subject, I have already observed, in my 
letter of the 30th March last, that even it such an error had been com- 
mitted, the strength of my argunicnt Vvonld not thereby have been 
impaired. But let us examine, if, in fact, there be any such mis- 
take; there are but eight treaties or contracts bct\Neen France and 
the United States; four of these arc of such a nature as not to admit 
of the clause in question; in two others it infonnallii expressed: in ano- 
ther it is mentioned in equivalent terms; the last, which is the Louis- 
ifina treaty, is alone sileui in that respect; and this silence furnisb.es. 
of itself, an iri-esistibie argument: 1 was, therefore, I'ight, in saying 
that all the treaties which could admitof that clause, mention, express- 
ly, the condition of reciprocity. It is of no consequence that one 
of them should not positively use the words, frecbj if freelij granted, 
or upon graniuig the same condition if conditionally granted. These 
words are a mere accessary, irrelevant to the question, in the exami- 
nation of which you have alleged my quotation to be ej'roneous. This 
question 1 shall now establish in its simplest form, and shall give it 
some extension so as better to explain my opinion. I say tliat in all 
the treaties of the United States, not only with Fi'ance, but Avith the 
other European nations, when mention is made tliei-ein of being treat- 
ed upon the footing of the most favoi'cd nations, this condition of re- 
ciprocity is expressed, stipulating that the contracting parties shall 
enjoy the same pri\ileges and advantages each in the ports of the 
other. One instrument alone is drawn in very different terms; it 
states, in future and forever after, the French nation shall he treated 
upon the footing of the mvst favored nations, in the ports of the terri- 
tory ceded l)y her. The clause stops hei-e; what are we to conclude, 
that, in fact, there was nothing o/ni/frr/, nothing implied, by the ne. 
gotiators, (sous entendu) reciprocity was not Auq: and, therefore, no 
mention is made of it. It was not diie, because the convention of 
1803 had no analogy with mere commercial treaties or regulations: 
it was a sale, .a bargain; the seventh and eighth articles are reserva- 
tions of rights of property made by the vendor; a mere condition of 
the purchase, (Mr. Crowninshield;) a part of the price of the terri- 
tory, (Mr. Randolph;) finally, because the teri-itory of Louisiana 
is a2)roperty ceded 'with a particular reservation, (Mr. Rodney.) Were 
it even a commercial ti-eaty, still, since the condition of reciprocil} 
is not mentioned, France would have a right to nniintain that she 
owes it not, and she could allege in her favor a very respectable opi- 



50 [91] 

iiion, in tlic following words of Mr. Madison, (Speech on the British 
Treaty.) *' The fifteenth article has anotlier extraordinary feature, 
which. 1 should imagine, must strike every observer. In other treat- 
ies, which profess to put the parties on the footing of the most favor- 
ed nations, it is stipulated that, w here new' favors are granted to a 
particular nation in return for favors received, tiie party claiming 
the new fiivor shall pay the price of it. This is just and proper w here 
the footing of tlie most favored nation, is established at .all. But this 
ai'ticle gives to Great Britain the full benefit of all privileges that 
may be granted to any otiier nation, without rerpiiriiig fi'om her the 
same or equivalent ])rivileges with those granted by such nation; 
lunce it would happen, that if Spain. Portugal, or France, sliould 
open their colonial ports to the United States, in consideration of cer- 
tain pivi leges in our trade, the same privileges would result gratis 
and ipso facto to Great Britain." 

But we ha^ e not even to exami))e this question, that which occnpies 
our attention, is quite diiferent, since it relates to a sale, a bargain; 
not a favor but a bargain. 

1 think. Sir, I have sufficiently proved — 

1st. That there are two ujodes of being treated upon the footing of 
the most favored nationg, eitlier gratuitously or conditionally. 

2dly. That the ships of four nations enjoy, at this time, in the 
United States, and, of course, in the ports of Louisiana, the rights 
and privileges of the most favored nations. 

Sdly. That France, according to the terms of the eighth article of 
the Louisiana Treaty, has a right to be put in possession of the same 
privileges in tiiese said ports, being part of those of the United States, 

4tlily. That slic owes, and can owe, no reciprocity, not only be- 
cause no such condition is stipulated in the contract, but also because 
the privilege in question, is a right of property reserved, or, if you 
prefer it so. is one of the e<iuivalents of the bargain. 

othly. That the intention of the negotiators cannot be doubtful, 
since the article which, in itself, requires no explanation, has, as a 
c()?o!lary, an authentic document, which would irresistibly prove, by 
the very circumstances of the case, what was meant and intended, if 
the treaty itself iiad not expressed it in the most explicit terms. 

I therefore hope. Sir, that, after the preceding explanation, the Pre 
sident w ill be pleased to order that, in future and for ever, (unless in 
ca'^f^ of subsequent arrangements to the contrary, between France and 
t!ie United States,) the eighth article of the Louisiana treaty receive 
its fiill and entire execution, and that, by consequence, French vesseh 
be imn>e(liately made to enjoy, in the ports of the ceded territory, all 
the rights, advantages, and pi'ivileges, granted to Great Britain, and 
to other nations, by virtue of treaties, or in any other manner. 
1 have the lionor to be. Sir, 

Your most humble and obedient servant, 

G. HYDE DE NEUVILLE. 

Note. Is it likely tliat France ran have intended to cede, for the 
mere consideration of a sum of fifteen millions of dollars, property 



[91] 



51 



which, even before the cession, was considered as having an incalcu- 
lable value, which a distinguished member of Congress valued (Deb. 
25th 8ber. 1803,) at more than fifty millions, and which, in a >veU 
wj'itten article of tne National Intelligencer, of the 10th of Sber, 1803, 
was esteemed to be worth six hundred millions of dollars? Antl it 
must not be said that France was ignorant of its value, since, before 
the cession, the American public prints took continual pains to inform 
her of it. I shall here cite one of these articles, signed Columbus, 
(Nat. Inteil. 2d Sept. 1803.) The writer complains that several of 
the public prints strive to take from the mei-it of Mr. Livingston's 
memorial: he expresses a fear that they should persuade France that 
it is contrary to her interests to cede Louisiana to this Republic. 
He cites the following passage of a paper published in Frederick- 
town, which would go to prove to the French Minister in Washing- 
ton, that the First Consul would commit an act of great folly in 
consenting to abandon so vast a territory. 

"■ The democrats cannot think the First Consul, Bonaparte, such 
a simpleton as to part with that country for any compensation we 
can make him." Thus, adds Columbus, it is represented that no- 
thing, in our command, is enough for those objects, (Louisiana and 
New Orleans.) 

Most certainly Bonaparte will never be regarded as a simpleton; 
nor will it be alleged that he had such affection for the inhabitants 
of tiiese United States as to have had, in the cession of Louisiana, 
no other object but that of rendering them a service. Surely he 
must, at the same time, have thought of his own country, and have 
intended, by I'eserving certain rights and privileges in favor of 
Fi-ance, to secure, at least, a sort of compensation for the great sa- 
crifice to which he was subjecting her. 

In whatever light this subject is viewed, the cession of Louisiana 
must certainly be considered as one of the most inconsiderate and 
fatal measures of the Usurper; but still it is not allowable to sup- 
pose that he could, on this occasion, have entirely lost sight of the 
interests of B'rance, and have consented to give up, for the mere con- 
sideration of fifteen millions of dollars, an immense territory, which 
will be a never-failing source of riches and prosperity to these Unit- 
ed States, and which, to France, would have been worth all the co- 
lonies which she now possesses, or has possessed, in the two hemi- 
sphei'es. 

The following opinion is such authority that I cannot better con- 
clude than with citing it. 

I consider the object as of the highest advantage to us: and the 
gentleman from Kentucky himself, wiio has displayed, with so much 
eloquence, the immense importance to this Union of the possession 
of the ceded country, cannot carry his ideas further, on that subject, 
than I do Sen. deb. 3. 9ber. ISOS. 



52 [91] 

Mu Jdams to B:iroii Hyde de jVeuvillc. 

Department of State, 

Washington, \ 5th June, 1821. 

Sir: In replying to the two letters which I have had the lionqr of 
receiving tVonj yoi!, the one bearing date tlie 29th of March last, and 
the other tlie 15th ot" May, I lind it necessary to re-state, in its sim- 
plest terms, the qnestion in discussion between us. 

The seventh and eighth articles of the treaty by which Louisiana 
was ceded to tiie United States, contain two distinct, but obviously 
connected stipuSations; that of the seventh article, by which certain 
special jjrivileges in the ports of the ceded territory are secured., for 
the term of twelve years, to the vessels of France and S]>ain, tothe ex- 
clusion of the vessels of all other nations; and ti-.at of the eighth article, 
that, after tfie expiration of this special privilege, thus limited to the 
ports of the ceded territory, French vessels should be forever, in the 
ports of the ceded territory, on the footing o£ ihc most favored nation 
in the same ports. 

Upon the termsof this article, by your note of the 15th of Decem- 
ber, 1817, you demanded, in the name and by order of your govern 
ment, and as in fulfilment of this article, that all the advantages yield- 
ed/or ample equivalent to British vessels, inallthcports of this Union, 
should be yielded, without any equivalent, to French vessels, in the 
ports of Louisiana. 

The answer which immediately presented itself, on the first dis- 
closure of this demand, was, that'the claim was, in two important 
particulars, broader than tlie stipulation upon which it was raised; 
first, inasmuch as, upon the mere right to eqnal favor, it required 
gratuitously, that which was conceded to another for a just equiva- 
lent; aiiil, secondly, inasmuch as, npon a stipulation limited in all its 
parts to the ports of Louisiana, it required concessions yielded to oth- 
ers w all the ports of the Union. 

As the claim was thus without support from the letter of the article, 
it Vv-as also aj)i)arently contradictory to itsspii-it and motive^,, as^vell 
as to the whole pui-pose of the treaty, and. expressly incompatible v> i<.h 
other articles of the treaty, and with the Constitution of the United 
States. Such was the substance of the answer, which, on the 23d of 
December, 1817; I iiad the hoimr of addressing to you in reference 
to this claim. 

By your note of ifith June, 1818, you replied with t!ie allegation, 
that France was entitled, by tltis article, to enjoy, unconditionally, 
in the ports of Louisiana, any advantage granted upon conditions to 
others in ail the ports of the Union, because France was to be consi- 
dered as having already given the equivalent by the cession of the 
territory; and, especially, because you alleged, that, in all the other 
ti'caties between France and the United States, it was expressly 
said, that the two contracting parties should enjoy, reciprocally, 
any favor granted to others gratnitonsly, if the concession to otiie'rs 
should be gi-aluitous, or, by granting t'le same compensation if the 
concessi(U! should be corH!iti')n;i.l: and, as no such distinction between 



[91] 



53 



conditional and gratuitous favor was formally expressed in the 8tli ar- 
ticle of tiie Louisiana cession treaty, you insisted witli great earnest- 
ness, that this variation in the phraseology oi' tlie article from that 
which had been universally used in all the j)receding treaties between 
the parties, led, irresistibly, to the conclusion, that no such distinc- 
tion was intended; but that the United Slates were bound forever to 
give to the vessels of France in Louisiana, every advantage, which, 
to the end of time, they might sell for a jyrice to the vessels of other 
nations throughout the Union. 

The great stress with which your note of 16th June, 1818, dwelt 
upon this supposed departure from the universal language of the prior 
treaties, made it necessary to observe, that its only basis was an er- 
ror in point of fact; that no such concurrence in t!ie form of language 
used in relation to the same p;inciple, existed in tlie prior treaties; 
that the alternative reciprocity of conditional or gratuitous favor, far 
from being expressed in all the treaties between the parties, had in 
terms been expressed only in one, and tiiat, the first treaty ever made 
between them; and particularly that a treaty concluded with the same 
government, as tlie Louisiana cession, and only three years before, 
contained such an article, stipulating, mutually, the advantages of 
the most favored nation, without any notice wiiatsoever of distinction 
hciween ^-w ovH gratnitons and favors conditional; and that this varia- 
tion of the phraseology in the prior treaties, of stipulations obviously- 
intending the same tiling, not only swept away the argument which 
you had drawn from the supposed universal coincidence of the former 
treaties, but made it recoil upon itself, and proved that gratuitous or 
the conditional nature of eqnal favor was inherent in the terms them- 
selves, and had only been expressly developed in the treaty of the 6th 
February, 1773, from t!ie abundant caution of contracting parties, 
new to each other, and above all anxious to leave no possible question 
of their meaning, thereafter to arise. 

Your reply of 3Uth March last, to my note of the preceding day, 
insists that '-all your citations, in your preceding letters, had been 
perfectly exact; that not only all the treaties between France and this 
Republic, (meaning the conventions which could be judged suscepti- 
ble of the clause in question.) but, also, all, or nearly all, the trea- 
ties or conventions between tbe United States and European Govern- 
ments, say, in terms formal, or equivalent, what you had understood, 
what yoii had read, what you had been bound to say.'* 

Permit me to observe, that the simple question between us was, 
whether all the treaties between the United States and France, ex- 
cepting only the Louisiana treaty, in stipulaiing the advantages of 
the most favored nation, had e.x-pressly added that the favor should be 
free, if freely granted to others, and upoti the same condition, if con- 
ditionally granted. Your letter of the lOih June, 1818, in the most 
unqualified terms asserted that they had; and from this position, con- 
nected with the omission of the same explanatory clause, in tiie stip- 
ulation of the Louisiana treaty, you had deduced, and most earne^ly 
pressed an argument, tliat this supposed solitary change in the redac- 
tion, necessarily imported a different construction, and entitled France 



54 [91 J 

to enjoy, in the poets of Louisiana, unco mill ionally, every favor grant- 
ed to others, w hetlier with condition or witliout. 

The demand upon a stipulation o( equal Javor. to enjoy without 
equivalent, or condition, tliat which was conceded to others only for 
an equivalent, or upon condition, was. in itself- so extraordinary, 
that it assuredly required something stronger than inferences, and 
implications, and equivalent tei-ms, for its support. The main argu- 
ment upon which Mr. de Neuville's letter of l6th June, 1818, had 
relied for this unexampled claim, was the omission in the Louisiana 
cession treaty, of the express explanatory words alleged to be in all 
the others. But the fact being otherwise, the conclusion was more 
clearly tlie reverse. 

It may now be added, that the only possible sense in which a stipn- 
lation for equal favor can be carried into effect, is by granting it 
freely, or for the equivalent, according as it is granted to others. 
For if the same advantage should be granted to France, ivUhaut re- 
turn, which is conceded to others only for the I'etui'n, who does not see 
that France, instead of being upon equal footing with the most favor- 
ed nation, would herself be upon a footing ?uo)f favored than any other? 

In the latter part of your letter of the 30th March, without aban- 
doning tliis demand of exclusive favor, built upon a simple engage- 
ment of equal favor, you seem to admit that the diminution of duties 
conceded to the vessels of several nations in the |)orts of this Union, 
is not a fa'or, but a bargain; and you alleged that, even upon this 
princi{)le, French vessels should be exempted from the additional ton- 
nage duty of the act of 15th May, 1820, in the ports of Louisiana, 
because the vessels of Russia, Spain, Portugal, and other nations with 
whom the United States have n'i treaty, ate not subject to it; and, re- 
peating a remark which had been made by the Charge d'Affairs of 
France, in August last, you say this is not merely a favor refused, 
but a burden imposed. 

The vessels of nations with whom the United States have no trea- 
ties, enjoy no favors in the parts of Louisiana. In the ports of Louisi- 
ana, tlie vessels of all nations are on the same footing as in those of 
all the other ports of the United States: there is no most favored na- 
tion in the ports of Louisiana, nor in any other port of the United 
States. During the twelve years, while tiie vessels of France and 
Spain were admitted into the ports of Louisiana alone, upon terms 
inSre favorable than into the ports of the United States, and fjom 
which the vessels of other nations were excluded, they were the most 
favored nations i;t the ports of Louisiana; but the favors were confin- 
ed both to the vessels of those nations and to the ports of Louisiana. 
They enjoyed this favor by virtue of the seventh article of the treaty; 
and the object and purport of the next article was to stipulate that, 
when this special and limited period of favor should exj)ire, no such 
special and exclusive favor should be granted to any other nation, in 
the same ports. Such is the engagement of the United States; and, 
as such, it has been, and will continue to be, fulfilled. No favor 
is now granted to any nation in the ports of Louisiana, und the eighth 
article of the treaty has no more application to the general comuier- 



L91J 55 

oial laws of the United States, operating alike in every part of the 
Union, than it has to the special bargains by which the vessels of 
aome nations enjoy a reduction fronm the duties imposed by those gene- 
ral laws, on the condition of equivalent advantages to the vessels of 
the United States, in the countries to which they belong. 

To the demand, therefore, that the vessels of France should pay 
HO higher duties in the ports of Louisiana, than the vessels of Russia, 
Spain, Denmark, or Portugal pay in alt the ports of the Union, the 
answer is the same as that given to your demand in terms by your 
letter of 15th December, 1817, that the vessels of France should pay 
in the ports of Louisiana, no higher duties than those paid by British 
vessels m all the ports of theUnion. The claim is broader than the sti- 
pulation upon which it is toundcd. This stipulation is. both by its 
letter and sjjirit, confined to special favors in special ports. The 
claim is either to general favors, applied to special ports, or to unre- 
quited favors for conditional obligations. In every such case, and 
by either of the constructions for which you contend, the United 
States could not assent to your claim without favoring France in tlie 
ports of Louisiana more than any other nation. Instead of being 
upon the same footing of the most favored nation, she wnuld herself 
be the most favored nation, and enjoy advantages conceded to no 
others. This is not the stipulation of the treaty. 

In your letter of the 1 5th ult. you remark, that tiie exemption of 
the vessels of other nations from the extraordinary tonnage duties 
levied upon those of France, inasmuch as it is enjoyed in ail the 
ports of the Union, U enjoyed also in the mrts of Louisiana, as a part 
of the Union; and, being enjoyed there, France has, by the engage- 
ment of the treaty, a right to claim the same exemption in those ports, 
although she is not entitled to claim it in the other ports of the 
Union. But it is this very generality, by virtue of wliich the ves- 
sels of other nations enjoy the exemption, which takes away from it 
all application of the eighth article of the treaty. Their exemption 
is not a favor in the ports of Louisiana, even when they enjoy the be- 
nefit of it in those ports: they enjoy no special favor there; and it is to 
such special favor only that the stipulation could give France an 
equal claim. 

In your letter of the 15th iilt. it is observed that the question is 
<*what must be understood by being treated upon the fooling of tiie 
most favored nation;" but this is not the question, because it does not 
cite the wiiole stipulation; the omission of the words "in the ports 
abovementioned," changes the state of the question from its special 
to a general character. The stipulation is, that "the sliips of France 
shall be treated upon the footing of the most favored nations in the ports 
abovementioned." The qualifying and special terms "in the ports 
abovementioned," apply both to the most favored nations ami to the 
treatment of the ships of France; nor can France claim any favor in 
the ports of Louisiana by this stipulation, without first showing that 
some other nation enjoys the same favor, as a special favor exclusive- 
ly in those ports. Tiiere is no such favored nation in the ports of 
Louisiana. In the omission of those words, it is believed that their 



56 [91] 

great importancfe to the question in discussion liad escaped attention. 
Tiicir restoi-ation to tlie statement of the question will iinmediatcly 
Jihovv their leading to a different conchiiion. 

You observe, indeed, in another partoljour letter, that you claim this 
favor in favor oi" France only in the jwrts of Lotiisiana; and you exjiress 
your apprehension that I had misunderstood the j)urport of ti'.e de- 
mands in your preceding letters, because I had specially uuderscoi-ed 
llie terms in all llic ports of the Unioiu ^^ hen irferring to the duties 
collected upon the \essels of otlicr nations. I an> well aware tlial you 
liave demanded the special favor for Fraiice, only in The ports of Lou- 
isiana; but you demand the s})ecial favor in the sjiecial ports, not as 
the stipulation of the article would warrarst if tlie case existed, because 
other nations enjoy the same special favor in the special ports, but 
because, by general laws, applicable to tiie vessels of tiiose foreign 
nations in all the ports of the Union, they pay in the ports of Louisiana 
less for tonnage duty than the \essels of France. 

You observe that it wouhl iiave been superfluous, and even idle, to 
make special mentioji of the j)orts of Louisiaini in treaties granting 
certain rights, favors, or privileges, in all the ])orts of the Union, be- 
cause, in the ports of the Union, are included tijose of Louisiana: that 
to give the whole is to give a part: as in such cases the generality 
necessarily includes the speciaUy. Tliis observation, as applicable 
to treaties between the United States and otiier nations, is correct: 
but the inference to be drawn from the priiuiple asserted, is conclu- 
sive against the claim of France in the present case. For it is not to 
any such concession ol' a general nature, and which is enjoyed by 
others in the ports of Louisiana, osily because they are ports of the 
Union, that the stipulation of the cightii article of the Louisiana ces- 
sion treaty applies. That stipulation, both in letter and spirit, is, in 
all its^parts, special and not genejal. The whole transaction refers spe- 
cially to Louisiana, as distinct from, and not as a part of, this Union. 
The seventh article stipulates for s])ecial favors in its ports for a term 
of years, to the exclusion of other nations; and the eighth provides 
against the concession of similar special favors after the exj)iration of 
the twelve years, to other nations, to the exclusion of tiiose of France. 

It is not, tliei'efore, suflicient for France to say, that the vessels of 
four other nations ]»ay onl} one dollar a ton in the ports of Louisiana, 
while tiiose of Fi-ance are i-e;iuired to ])ay eigiiteen. For tliosc ves- 
sels pay that dollar only, not because tliey are more/a'co?T(/ than otlier 
nations in those ports, but because they pay tlie same in all the ports 
of the Union; because tiiose nations have j»assed no laws excluding 
the vessels of the United States from carrying to their ports the pro- 
ductions of their own soil by tiie excessive aggravations of surciiarges. 

There is no difference of opinion between us with regard to the 
principles which ouglit to apply in tlie construction of compacts, pi'o- 
mises. and treaties. Admitting the correctness of all your citations 
from Vattel, I would specially invite ytnir attention to that wliicii 
forbids all constructive interpretation of that whicii speaks for itself. 
But I ask that, in stating the question upon the stipulation, none of 
its essential words should be omitted^ that it should not be stated as 



[91] 57 

a general question of *^what is meant by being treated on the footing 
of *.he most favored nation," but as a special question of what is 
meant by being treated as the most favored nation in the ports of 
Louisiana; for, when, upon a stipulation in these words you raise a 
claim to be treate<i in Louisiana on the footing of the most favored na- 
tions in the ports of the United States, and when, to suppoit this claim 
to special favor in special places, resort is had to the argument that 
the whole includes all its parts, and that the generality embraces the 
specialty, what is this but interpreting that which has no need of 
interpretation? To us it appears not only so, but an interpretation 
as contrary to the mafltfest intention of the article, inferrible from its 
connection with the article immediately preceding, as to its letter, 
which is special in all its parts. 

Of the numei'ous extracts which you have taken the trouble of in- 
troducing in your letter of the 15th ult. fiom the spec ches of indi- 
vidual members of Congress, repoited in the National Intelligencer, 
as having been delivered at the debates on the passage of the laws for 
carrying the Louisiana treaties into execution, I regret not to have 
been able to discover one which has any bearing vAJiatever npon the 
question between us, which is of the true import of the eighth article 
of the tieaty: they all have reference to the seventh article — to the 
exclusive privileges which made France and Spain, for a limited 
term of twelve years, the most favored nations in the ports abovemen- 
tioned. and the objection was strongly urged that this stipulation was 
incompatible with the ])rovision in the Constitution, which forbids 
any pieference to be given by any regulation of commerce or reve-* 
nue to the ports of one state over those of another. To this objec- 
tion, the speeches from which }ou have cited passages, were the an- 
swers; and they all distinctly assume the piinciple, that the prohibi- 
tive injunction of the Constitution was not incompatible wi(h the 
stipulation of the treaty; because Louisiana was acquired, not as a 
state, but as a territory: so that, while she continued in the territo- 
rial or colonial condition, regulations of commerce different from 
those prescribed for the states of the Union, might be established in 
her ports, without contravening the Constitution; and there was not, 
in any one of those speeches the intimation of a doubt, but that, 
when Louisiana should be admitted tia a. state into the Union, the re- 
gulations in her ports must be the same as in the ports of all her sis- 
ter states. But the third article of the treaty stipulated that "the 
inhabitants of the ceded territory should be incorporated in the Union 
of the United States, and admitted as soon as possible, according to 
the principles of the federal Constitution, to the enjoyment of all the 
riglits, advantages, and immunities, of citizens of the United States,'* 
and, as this article could be carried into execution only by their ad- 
mission into the Union as a state or states, so by their admission in 
that capacity, their ports became subject to that provision of the Con- 
stitution which interdicts all preference to the ports of one state over 
those of another. U the admission of a part of those inhabitants 
did, in fact, by a short time, precede the termination of the period 
R 



58 [ 91 3 

subject to tlie exclusive privileges of French and Spanish vessels in' 
their ports, although the sentiment cited by the Baron do Neuville be 
pei'ioctly correct that the Constitution ought not to be violated for a 
single day, as tio question appears to have ai'isen at the time of the 
admission of the state, upon the application of this article, and as 
the j)rivilege of French and Spanish vessels was tiever, in fact, denied 
them, during the term for which they were entitled bv the article 
to claim it, whatever transient and inadvertent departure, in favor of 
the inhabitants of Louisiana, from the principle of the Constitution, 
may have oc( iiired is, as the Baron de iN>u\ilIe observes a question 
of internal administration in this government, from which France 
has received no wiong, and of wijich, therefore, she can have no mo- 
tive to complain. 

For tlic term of twelve years, therefoie, from the time specified in 
^he treaty, France and Spain enjoyed, by virtue of the seventh article, 
special /avoj-.s and privileges in the pojis of Louisiana. But it was not 
certain, at the time when the treaty was cov.clnded, that the inhabi- 
tants could, within twelve, or tvvmty, or even fifty years, according 
to the principles of the Federal Constitution, be entitled to claim ad- 
mission into the Union, as a State. After the expiration of the twelve 
years, there might be an indefinite interval of time, during which the 
special favors conceded to France and Spain in the seventh article, 
niig!»t be transferred to other nations; and the eighth article was ob- 
viously intended to aveit that contingency, by stipulating, that, after 
the twelve years of special favor in the ports of Louisiana, the ves- 
sels of France should be on the footing of f/ie most favored nations in 
the ports aforementioned — importing, by the j)ioper meaning of the 
terms, and without any ambiguous inferences of sj»ecialties from ge- 
neralities, or, as the Baron de Neuville's reasoning would require, of 
generalities from specialties, that no such special favor in the ports 
of Louisiana should, after the twelve years, ever be conceded to any 
other nation, to the exclusion of France. This is the plain and obvious 
meaning of the article — the only meaning deducible from its letter — 
the only meaning traceable to the intention of the parties, by its im- 
mediate connection with the special and exclusive privilege of the ar- 
ticle immediately preceding it, and of which it is the natural comple- 
ment. 

If the opinions cited by the Baron de Neuville from the speeches 
of individual members of Congress, after the conclusion of the treaty, 
have, as is now maintained, no bearing whatever upon the meaning 
of the article now in discussion, much less can it be expected, that the 
proposals in a memoir addressed by Mr. Livingston to the French 
Government, nine months before the negotiation of the treaty, and in- 
tended to shew that it was not the interest of France to take posses- 
sion of Louisiana at all, should have any reference to a treaty found- 
ed upon totally different principles. 

The object of this memoir was to convince the French Government, 
that it was for the interest of Fiance, instead of taking possession of 
liOnisiana, to put the island of A''ew Orleans into the hands of the 
Onited States, reserving to herself the right of a free port there, pay- 



[91] 59 

ing no lilglier duties than American vessels, and securing also to 
France the navigation of the Mississippi. The memoir was written 
at a time when the project of establishing a military colony at New 
Orleans was contemplated by France; but even the treaty by which 
Louisiana was ceded to France by Spain, had not then been con^ 
eluded. There is an ei-ror in the citation fiom this memoir in the 
letter of the Baron de Neuville, i^page 32,) of the 15th ult , where it 
is quoted as saying, that "the ;;o.ssession of Louisiana was very im- 
portant to France," while in the memoir itseifthe expressions are, 
that " the cession of Louisiana is very important to France." 

The substitution of the term possession for that of cession, is only 
woticed because it might give an erroneous idea of the whole scope of 
the memoir, which was to prove that the j^ossession of Louisiana by 
France would be, in a very high degree, detrimental to the interest of 
France, but that she niigiit render the cession useful to her by put- 
ting JVew Orleans in the possession of the United States, securing to 
herself the privilege in it of a free port, together with the navigation 
of the Mississippi. The memoir did not even propose that Louisiana 
should be ceded to the United States, but merely that New Orleans 
should be put into t\\Gir possession, to be held by them, not as an inde- 
pendent and sovereign state of the Union, but on tlie same Colonial 
condition as it was then held by Spain, and as it would have been 
held by France, had she taken and retained possession of the Province. 
Under such a project, embracing no purpose of a change in the politi- 
cal condition of the inhabitants, the parties were competent to stipu- 
late conditions like these without violating the Constitution of the 
United States, even though witliout limitation of time. But the com- 
pact actually made was ofa totally different character. By the compact 
actually made, not only the Island of New Orleans, but the whole Pro- 
vince of Louisiana, was cefW in full sovereignty to the United States, 
for a valuable consideration in money; an equivalent far more valua- 
ble to France than any be.iefit she w'ould ever have derived from the 
possession of the Province for ever. The nature of that compact, 
however, made it necessary to provide for the future condition of the 
inhabitants of the country. Justice to them required, that, when thus 
ceded in full spvereignty to the United States, they should, in due 
time, be released from all the shackles of colonial bondage, and as- 
sume their station as a free and equal poition of the Republic to which 
they were annexed. With this wise and just condition, France 
could no longer claim to stipulate for the navigation of the Missis- 
sippi; she could no longer ask, without limitation, the privilege for 
her ships of exclusive favors in the ceded ports. Both these condi- 
tions, perfectly compatible with a treaty upon the basis which had 
hcen proposed by the memoir of Mr. Livingston, in August, 1802^ 
became quite inadmissible in a treaty founded on the basis finally 
adopted. The comi)arison therefore of the proposals in the memoir 
of Mr. Livingston, cited in the letter of the Baron de Neuville, with 
thp actual stipulations in the 3d, 7th. and 8th articles of the treaty, af- 
fords itself a very conclusive argument against the present claim of 
France. The proposals are, tliat France should merely ^[xeposscssimto 



^HMik^BMSffi 



60 [ 91 3 

the United States of New Orleans, reserving to her own ships, without 
limitation ol" time, the privileges of paying there no higher duties 
than American vessels, and the navigation of the Mississippi: But 
not a word was said in them of a stipulation that the vessels of France 
should be upon the footing of the most favored nations in the same 
poi'ts. The treaty is a cession in full and entire soveieignty of the 
whole province, hut with no right reserved of navigating the Missis- 
sippi, and with the right of admission for French and Spanish vessels, 
upon the same footing as A<nerican vessels, limited to twelve years. 
Why these great and remarkable variations from the offers of the 
memorial? Wiiy, but because they necessarily flowed from the prin- 
ciple of a cession in full sovereignty, and because all the rights and 
privileges of the Constitution of the United States were, by a new 
stipulation, secured to the inhabitants of the Province! The cause 
and the effect are both palpable, from every point of departure in the 
actual treaty from the proposals of the memoir. The limitation in 
the article, of that which the proposal offered unbounded, is the proof 
of its own necessity; and the substitute in the 8th article, of equal 
favor tvith the most favored in those jmrts, after the expiration of the 
limitation, instead of the perpetuity of the special privilege, is illus- 
trated both in its meaning and extent by the exposition of the unlimited 
offer in the memorial <>f which it supplied the plare. 

Of the numerous citations, in the letter of the Baron de Neuville, 
of the opitiionsof individual members of Congress, and even of anony- 
mous publications in the American newspapers, one purpose appears 
to be to dwell witli great earnestness on the supj)osed advantages of 
the Louisiana cession to the United States. Without referring to 
the estimates of nameless authorities, it is not necessary to inquire 
■wlicther those of the members referred to were exaggerated or other- 
wise. It is however to be observed, first, that all those estimates 
were formed, under impressions that the extent of the Louisiana ces- 
sion was vastly more com|)rehensive tlian the subsequent declarations 
and efforts of the French Goverinnent would have made it; and se- 
cond ly, that probably all those persons, to whose anticipations the 
Baro.'i de Neuville appeals with so much confidence, agreed as they 
were in the importance and value of Louisiana to the United States, 
would also have agreed in the opinion so forcibly urged in the me- 
moir of Mr. Livingston, that the possession of the same country, 
Avould have been worse than useless, highly detrimental, and perni- 
cious to Fiance. Of this opinion, one, at least, of the individuals, 
whose sentiments the Baron de Neuville has been pleased to quote 
with very flattering deference, then was and still is. He lias no 
doubt that, in the possession of France, Louisiana would have con- 
tinued to be, as it always had been, a burden and not a benefit: and 
at the time when the cession was made, the only practical question 
to France was, whether Louisiana should pass into the hands of a 
friend, for ample compensation, or into the grasp of an enemy, for 
no compensation at all. Louisiana then, was of great value to the 
United States, and of much less tlian no value to France; and the 
cession of it by France to tlic United States, was one of those trea- 



[91] 61 

ties which are the best and most useful of transactions between na- 
tions, a compact highly advantageous to both the contracting parties. 
But whether advantageous or otherwise, and whether to both or 
to neither of the parties, lias no more bearing upon the present ques- 
tion between the two Governments, than the speculative forecast of 
individual members of Congress, or the lucubrations of newspaper 
party writers. The question is upon the true meaning of the eighth 
article of the treaty: that meaning is expressed in the words of the ar- 
ticle: it is confirnied to demonstration, by its immediate connection 
with the preceding article; it is illustrated by its variation from the 
proposals in Mr. Livingston's memoir, cited by the Baron de Neu- 
ville himself; nor has it been possible for the Baron, at any stage of 
the discussion, to state the present claim of France in any shape, 
without essentially departing both from the words and fi-oni the spi- 
rit of the article upon which it would rely. When first advanced, he 
expressly dem^uided, upoti a promise of equal favor in the ports of 
LouUiana with the most favored in the ports of Louisiana, a perform- 
ance of equal favor in Louisiana with the most favored in all the 
ports of the Union. Upon a promise of equal favor, he demanded a 
grant, Yf^iV/ioHf equivalent, of that which had been conceded to others 
for an equivalent. In his letters of the 1 5th of May, he states the 
question to be, what is understood by being treated on the footing of the 
most favored n«/ioJi?— omitting the words *• in the ports abovemen- 
tioned," which words are part of the stipulation in the article; but 
the very insertion of which, in the statement of the question, would 
have been fatal to tlie present claim. 

After the fullest consideration of the question in controversy, and 
the most deliberate examination of the arguments adduced by the 
Earon de Neuville, in his several letters on this subject, I am ni- 
structed to say, that this Government adheres to the opinion, that 
the ei-hth article of the Louisiana treaty does, in no respect, author- 
ize th? present claim of France, inasmuch as. since the expiration ot 
the twelve years specified in the seventh article, there has been no 
nation more favored than another in the ports of Louisiana. 

I avail nnseif with pleasure of this occasion of renewing to you 
tlie assurance of my distinguished c-^^^^-tion^^Y ADAMS. 



No. 19. 
Baron de Muville to the Secretary of State. 

[translation.] 

Washington, June 50th, 1821. 

Sir: I have received the letter which you have done me the honor 
to write to me, dated the 1 5th of this month- 

In my turn I shall endeavor to re-establish the quest.on whirl, oc^ 
cupies our attention; and, by removing some errors which it bchoNCs 



i^lMy^KM 



62 [91 ] 

mc to rectify, I shall answer the new ara:uments, which you have 
oj)posc(l to those advanced by me in the coniniencement of the discus- 
sion: from these I cannot depart, since nothing appears to me to 
Aveaken their force. 

You do me the honor to state that '' the 8th article stipulates, that 
French ships shall be, forever, in the ports of the ceded territory ^ up- 
on the footing of the most favored nation in the same ports" 

Farthei-, you add, "the qualifying and special terms in the ports 
above mentioned, apply both to the most favored nation, and to the 
treatment of the most favored nations." 

Finally, you say, sir, that 1 have founded on the 8th article, which 
you cite, my remonstrance of the 15tti Dec. 1817, tending "to ob- 
tain for French vessels in the ports of Louisiana, the advantages 
granted to the English nation in all the ports of the Union." 

I founded my demand upon the 8lh article, such as it is in the treaty 
of cession- 

i will here observe, that, in my opinion, even though the article 
were expressed as you present it, my cause would still be no less 
founded; but it is prudent to make no concessions to so formidable 
an adversarv; I shall, therefore, attack your principal argument in 
its basis, and shall endeavour to prove it is erroneous, even in the 
point whereby you seek to establish that there is no question, hut of 
special furors to be granted, specially and exciusivelij in the ports of 
the territory ceded bv France. Allow me, sir, in the first place, to 
make the following observation: my claim is entirely giounded upon 
the article such as it is in the treaty, as it should be undeistood in 
the common usage of language; afid. in fact, it is always by modify- 
ing it, or. to speak with more propriety, by making it anew, that an 
attempt is made to oppose my arguments. 

This eighth article, according to your note of the 29th March, 
means evidently, that, after tlie expiration of the twelve years, no such 
jieculiar privileges shovldb granted, in the same ports, to the vessels of 
any other nation-, to the exclusion of those of France. 

But the article appears to me evidently to stipulate quite the re- 
verse. It has no relation to the special right which Fratice reserved, 
by the seventh aiticle, for Spain and for herself, for the space of 12 
years, but to all the rights, privileges, immunities, favors, which, 
after the 12 years, might be granted to other nations under any title 
whatever. 

France is to be treated, in future and forever, upon the footing of 
the most favored nation. Th\y. is the whole question; if what you 
understand to be its import had really been meant, would it not have 
been more natural to have entirely suppressed the eighth article, and, 
after the following clause of the seventh, (" during the space of time 
abovementioned no other nation shall be entitled to the same privileges in 
the ports of the ceded territory.") to iiave added. »' after the expiration 
of the twelve years aforesaid, if the same privileges are granted to 
any other nation it! the same ports, they shall become common to 
France also." 



[91] 63 

But even these expressions, I perceive it, sir, would not come per- 
fectly up to your idea, nor effectually over-rule my opinion. 

Why then wafi not the article worded in the I'oUowing terms: they 
would naturally have occurred to the negotiators if they had thought 
at that time of what you now conjecture. 

" In future, and forever, France shall enjoy, gratuitously, in the 
ports of the territory ceded hy her, all the rights or privileges which 
may be granted ^Tatid^ows^j/, and specially, in the said ports, to any 
other nation." The clause would then have been clear and precise, 
and I should, in such case, have perfectly conceived what you do me 
honor to state in your note of the 23d December, I8l7: *^ If British 
vessels enjoyed, in the ports of Louisiana, any gratuitotis favor, un- 
doubtedly French vessels would, by the terms of the article, beentitled 

to the same."' , r- • i 

Bat, to be candid, how can it he asserted now that France is to en- 
joy only such favors as may be granted gratuitously to other nations, 
when we read in the 8th article, '• In fjiture, and forever, after the ex- 
piration of the twelve years the sliips of France shall be treated upon 
the footing of the most favored nations in the ports abovementioned?" 
I, therefore, had reason to advance that it was essentially necessary 
first to define correctly what must be understood by the terms most 
favored nations. It makes but litttle difference whether we say the 
'most favored nation in the ports of Louisiana, or onlij the most favored 
nation, since wc have only to determine this first point of the ditfi- 

culty. 

Why should France enjoy in the said ports only such favors as 
should be conceded gratuitously, and not such as might be granted 
conditionally? The 8 th article says no such thing; why, theretore— by 
what law. by what rule, can it be p<>sitively established, that, '* it 
British vessels enjoyed in the ports of Louisiana any gratuitous fa- 
vor, undoubtedly French vessels would, by the terms of t!»e article, 
be entitled to the same." Is there then but one mode of becoming in 
any country whatever, the most favored nation? Or, it the conven- 
tional law of nations admits, particularly in the United States, that 
this treatment may be obtained, not only gratuitously but conditional- 
br if the Federal Government has been ever careful to have this clause 
inserted in its different treaties; if I find it in the conventions of 
1778, 1783. 1785; if I find it again in the treaty with Prussia, nego- 
tiated by Mr. Adams himself, in 1799, how can the Secretary of 
State say now. that, *' if British vessels enjoyed in the ports of Louis- 
iana an]j gratuitous favor, undoubtedly French vessels would, by 
the terms of the treaty, be entitled to the same?" 

France, I repeat it, has a right to enjoy, in the ports of Louisiana, 
the treatment of the most favored nation, whether this nation be tavor- 
ed gratuitously or conditionally; she has a right to enjoy it, inasmuch 
as the 8th article stipulates expressly, that, ^^ in future, and Jorever, 
French ships shall he treated upon the footing of the most favored nation 
in the ports of the tern lory ceded by France.' To pretend that she 
is to obtain this treatment in case only that it shall he conceded 



64 [91] 

gratuitouslif to another nation, is subjecting the Stli article to aii 
arbitrary interpretation; it is going in the lace ol' a doctrine gene- 
rally received; it is inter[)reting what retjuires no interpietation; 
it amounts, in fine, to the creation of a new conventional law of na- 
tiosis peculiar to the ports of Louisiana. 

I now pass, sir. to the entii-ely new interpretation wbicb you give 
in your letter of the 15th of tliis month, to this same article. You 
make it express, that, after the expir.ation of this special privilege, 
that, if the seventh article tiius limited to tbe ports of tlie ceded 
territory, Frencii vessels should be foi-ever, in ike ports of the ceded 
territory, on the footing of the most favored nation in the same ports. 

If the question were only to new mould the article, nothing could 
be more easy, as I have already made it appear, than to give it the 
sense which is now attempted to be ascribed to it; but we must ad- 
here to its letter if we mean ever to come to an understanding. 

It is certain that French vessels are to be treated upon tfie foot- 
ing of the most favored nation; but where are they to be so treated? I 
answ er, in the ports of the territory ceded by Fi-ancc: and this ipso 
facto, gratis, whatever be the title under whicii the most favored na- 
tions may enjoy the same treatment, has it been meant by the article 
to say the nation most favored in the said ports, exclusively in the said 
said ports? Finally, ai-e we to read, as you now, for the first time, 
propose, the most favored nation in the ports of the ceded territory? 
Doubtless, no; t!ic last member of the period has no refei*ence to the 
most favored nation; it can have no relation except to the treatment of 
French vessels: ^^ Infutnre, and forever, French vessels shall be treated 
upon the footing of the most favored nation.'^ Here the sense is complete, 
with regard to the words most favored nation. All instruments found 
in public law clearly show what is meant by the most favored na- 
tion. There can, therefore, be no nusconception in this respect. 
But this is not the case with the otiier men)ber of the sentence; it is 
not sufficient to stipulate, that French vessels shall, in future and for- 
ever, be treated upon the footing of the most favored nation; it is neces- 
sary, moreover, to specify where they shall be so treated; for, other- 
wise, the sense Avould be incomplete, and the aiticle would have no 
meaning at all. 

I shall avoid all grammatical discussion; but, if the sense of the ar- 
ticle did not evidently bear me out, and if I were under tlic necessity of 
showing by its construction, that it cannot have the meaning which 
you attribute to it; I could cite in favor of my assertion, several phra- 
ses of your last note, and would prove by tiieir correctness, that the 
8th article, such as it has been drawn, and worded in the treaty, can- 
not admit the argument made by you, in the concluding words of the 
sentence. 

It concerns not France to examine if any nation enjoys in the ports 
of the territory ceded by her, any right or privilege, as a special fa- 
vor exclusively in those ports; she has only to inquire whether any 
nation is there treated upon the footing of the most favored nation; or, 
in other words, if the treatment she receives, is more favorable than 



[91] 



65 



that of French vessels, in the said ports. It is matter of small im- 
portance to lier, to know whether siich nation, being the most favor- 
ed in Louisiana, is at the same time tlie most favored in Baltimore, 
New York, or Boston, or to know by what title such favor is grant- 
ed in the ports of Louisiana. The fact ah)ne, when ascertained, is 
of itself sufficient ground for claiming as her due, the fulfilment of 
the 8tii article of the Louisiana treaty, which stipulates /Aa^ infulurc. 
and forever, after the ecqnratiim of the 12 ifears, French vessels shall 
be treated upon the footing of the most favored nations, in the ports above- 
mentioned. 

Which, without gloss or comment, expressly means, ** In future and 
forever, after the exi>iration of the 12 years aforesaid, French vessels 
shall be treated in the ports abovementione!!, (that is, in the ports of 
Louisiana territory ceded by France,) upon the footing of the most fa- 
vored nations." 

It would be needless to add any thing to this exjdanation, since the 
sense is complete. And it would be vain to seek even iJi a forced word- 
ing (redaction) of the ai'ticle, t'ac special favor exclusively in those 
ports. The article neither expresses nor could express any such tiling. 
It does not express it, as has been just proved. It could not express it. 

This, sir, you would constantly prove, by objecting that, " according 
to the Constitution, no preference shall be given by any regulations 
of commerce or revenue, to the ports of one state, over those of anoth- 
er." From this it clearly follows, in your own opinion, sir, that no 
nation can receive a special favor in a special port, and exclusively in 
that port. What is not allowable at this time, could not surely be done 
in 1803; and how can it be conceived, that the only end of the Ameri- 
can negotiators was to grant to France, nothing but an illusive advan- 
tage, a privilege which she could never be put into possession o/" consis- 
tently witii the Constitution ? How cou Id the Fi-ench negotiators have 
claimed or accepted such a favor? How is itpossible to reconcile the 
idea of a claim, which would amount to a. more mockei^, with expres- 
sions so solemn as these, in future and forever? It cannot, I repeat it, 
be presumed, that discreet and sensible men, making a treaty and a 
solemn conveyance, have intended to make a mere nullity. Let us ex- 
amine what is likely to have taken place, what certainly did occur du- 
ring the negotiation, and \ e shall find that it is not at all necessary to 
torture the expressions of the article, in order to establish its true and 
positive meaning. 

France was about to cede a vast territory in order to render an 
important service to a friendly nation; that territory was her pro- 
perty; she, therefore, had a right to settle the clauses and conditions 
of the contract. This was not the case of a favor granted, nor of a 
commercial regulation to be made by the United States; but, on the 
contrary, of a'favor to be received, of a very important acrpiisiti an to 
be made by them. This bargain could not but be very advantageous 
in every respect to the United States— France was not to gain as 
much by it; this she knew, but although she willingly consented to 
9 



&iittaiiiMii». 



66 [91] 

make so j^rcat a sacrifice, was she entirely fo neglect her own inter- 
ests? The French Government knew at the same time, that dilticul- 
ties had arisen already between the two countries, and the convention 
of 1800. testified tliat tlie j)arties had not been able to come to an un- 
derstanding on the treaties of 177 8^ the provisional convention of 
1800, was to lemain in force only five yeais moi-e; it might possibly 
be renewed; the parties might come to an understanding on the vari- 
ous points in dispute; but, at the same time, it was also possible that 
other discussions should [)roduce injurious measures, impolitic steps, 
and lead to a state of things equally injurious to both nations. 

Experience seems to have proved how prudent it was in them, to 
foresee, and how wise to act in prevention. Such being the state of 
things, how was it proper foi- France to act? I will answer, just as 
she did act. and this course was too obvious not to have been j)ursued. 
She was about to cede an immense colony, the inhabitants of which 
spoke the French language, and were likely not to lose French tastes 
or to abandon French fashions: it particularly behoved her to secure 
forever^ such a market for her productions* — Mr. Livingston told her 
so, policy and common sense led her to do so. It was, therefore, that 
the French Government, wliilw ceding Louisiana, in order to give the 
United States a remarkable j)roof of friendship, and to do away every 
cause of rivalship between the two nations, reserved, in the ports of 
the territory ceded, a right or privilege, the full and entire enjoyment 
of which, should be independent of all general arrangements of com- 
merce or navigation, existing at that time, or which might subse- 
quently be made by the two nations: that the privilege should secure 
to French merchants, the advantage of being/oreTuei' treated in Loui- 
siana, upon the footing of the most favored nation, whatever might be 
the footing upon which they should be received in the other ports of 
the United States; therefore, did France demand that, after the expi- 
ration of the twelve years, during which, both Spain and herself were 
to eujoy an exjual privilege, she, B'rance, should have alone, in future, 
ami for ever, a right to be treated, in the ports of Louisiana, upon the 
footing of the most favored nation: not of the nation most favored ex- 
clusively in the said ports, (which, most assuredly the 8th article does 
not say,) but of the most favored nation by whatever title; which the 
article may be said to stipulate expressly, tiince no condition is an- 
nexed to tlic favor. It cannot, at all events, be asserted that this is 
a forced interpretation, since it agrees so perfectly with the text and 
lettei'of the article, which is, moreover, abundantly explained by an- 
tecedent facts, by the circumstances of the case, and by subsequent 
events. It appeared to me, sir, that, in my letter of the 15tii of May, 
I had clearly replaced ujmn its proper footing, the question relating 
to a supposed error in that of the l6th of June, 1818. I thought it 
"was proved that, whether there were or were not such an error in my 
letter, there would still remain the same force in the argument, which, 
alone, it was material to attack; but since you have thought it proper, 

• Sec Ihe end of Mr. Livingston's memohal 



[91] 67 

sir, again to return to this citation, whicli, I repeat it, even if erro- 
neous would not alter my argument in the least, let us again examine 
with minute attention, if there really be any mistake on my part. 

Theie are eiglit treaties, compacts, or conventions, between France 
and the United States; four of these are of such a nature as not to ad- 
mit the clause in question: the four others being such as to allow itjj 
insertion, are: The I'reaty of Amity and Commerce of September, 
1778. The Consular Convention of 9th November. ITS. The Com- 
mercial Convention of , 1800; and last, the Louisiana Treaty 

of , 1803. In the treaty of 1778, stipulating that both countries 

shall enjoy, each in the ports of the other, the treatment of the most 
favored nation, the very same expression which I have used will be 
found in the articles 2d, Sd and 4th. The convention of 9th of No- 
vember, refers to the :2d, 3d, and 4th ai'ticies of the said preceding 
treaty. Two. therefore, out of these four treaties, state precisely 
what I have attributed to them, viz: that each nation shall enjoy, in 
the ports of theotlier, tlie treatment of the most favored nation, /ree- 
hjf if freely granted, or conditionally, if the concession be comlitional. 

The third treaty, (of 1800.) stipulates expressly that the two na- 
tions shall reciprocally enjoy the treatment oi the most favored na- 
tion, both as regards the rights and privileges of Consular agents, 
(art. 10th ) and with respect to nil privileges, immunities, liberties, 
and exemptions in trade, navigation, and commerce, and as to duties 
or imposts, of what nature soever they may be, or by what name so- 
ever called. An attentive examination of tliese two articles will sure- 
ly suffice to produce an absolute conviction, that, when the condition 
of reciprocity is thus expressed, nations are reciprocally to enjoy the 
treatment of the most favored nations, upon the condition generally 
understood. Thus, the convention of IBOO does stSiXe, in eqidvuLent 
terms, what is stipulated expressly in the treaties of 1778. I, there- 
fore, concur in your opinion, sir, on one point. In truth, 'ivho can 
dmibt that this was implied in the article? but I cannot go on to say 
with you, though not expressed, since it does not appear to me possible 
to express any thing more clearly in equivalent terms. Last remains 
the Louisiana treaty, and it is precisely because the treatment of the 
most favored nation is secured to France, without reriprocify mi her 
part, that a discussion has arisen on these points. Where, then, have 
I committed any error? Perhaps it would have been more rigorously 
exact to have said the treaties, instead of fl/i the treaties, since the re- 
ference was but to four treaties. Biit I would ask, sir, if that single 
word, all, WHS of such moment as to fix so repeatedly your attention? 
Sir, I repeat it, all the treaties between France and the United States, 
(those, it is understood, which could admit of such a clause,) all the 
treaties between the United States and European nations, wherein 
the treatment of the most favored nation is mentioned, stipulate that 
it shall be reciprocal: and on examining the other compacts between 
nations, I find the same stipulation of reciprocal advantages in every 
case, except where, as in the Louisiana treaty, there is some charge 
imposed by one party on the other, or a privilege reserved. 



iTTfUir -' a-Miil 



68 [91] 

"Whence is it that one treaty, that of 1803, should alone mention, 
'Without reciprocitiif the treatment of the most favored nation? The 
reason becomes obvious, if we consider that it is the only treaty of 
the United States, sid generis, \vh ch does not relate to commercial 
arrangements: a commercial convention grounded on expected con- 
tingencies, and stipulating U)utua! sejvices and advantages, which do 
not require any advances, lias no sort of analogy with a contract of 
sale, a mere bargain. In this last case the vendor conveys his proper- 
ty to the vendee, who binds himself for the stipulated consideration, 
consisting in the other clauses, charges, and conditions, of the bar- 
gain, as well as in the funds to be paid at hand, or by instalments; 
the right of the vendor, his only right, as you observed, sir, in 1805, 
is to require that the conditions stijmlated be jmnctuatly and faithJ'nUy 
performed. This is all France desires; she has fnjoyed, or might 
have enjoyed, during the space of twelve years, the right secured to 
her by the 7th article, and she now demands the fulfilment of the 8th 
article; which, as well as the 7 th, is **a part of the price of the ter- 
ritory, a mere condition of the purchase." In your letter of the 15th 
you say, *♦ of thenumerousextracts which you have taken thetrouble of 
introducing in your letter of the 15th ult., from the speeches of indi- 
vidual members of Congress, rejjortcd in the Mitional Inielligcnccr^ 
as having been delivered at the debates on the passage of the laws for 
carrying the Louisiana treaties into execution, I regret not to have 
been able to discover oiie which has any bearing whatever upon the 
question between us, which is of the true import of the 8th article of 
the treaty; they all have reference to the 7th.'* 

Suffiei* me, sir, to obsei've, that in thus taking the trouble to cite 
tliese very respectable opinions, my principal object was to answer 
the following passage of your letter of the 15th of March: '< From the 
obvious purport of the 7th and 8tli articles, it is apparent, that neither 
of them was considered in any lespect as forming a part of the equiva- 
lent for the cession of Louisiana;" I was, therefore, right, in not se- 
parating them, when my object was to prove that neither of them was 
considered in any respect as forming a ])art of the equivalents for the 
cession of Louisiana; and although the question of constitutionality 
cannot, in any case, concern France, it was proper that I should es- 
tablisli its having been completely settled in 1803; and that I was not 
alone of o])inion that Louisiana was property ceded, *< with particular 
reserration, with a condition which the party ceding had a right to re- 
quire, aiid to which the United States had a right to assent" It makes 
but little diffeience what particular article ot* the treaty gave rise to 
tiie s])eeclics cited, iCthey had a full bearing on the whole convention, 
and if cAcry argument adduced on t]je7th article is, a fortiori, appli- 
cable to tlie 8th. Tiic 7th and 8th articles are both a part of the 
equivalents for the cession, or, rather, they are reservations of rights 
of property. — France owed no reciprocity, and therefore it is that no 
reciprocity was stipulated on her part; it was no error or omission of 
the negotiatoj's. 



[91] 



69 



I read, sir, in your letter of the 15tli, '' in the latter part of your 
letter of the 30th of March, without abandoning this denvand of 
exclusive favor, you seem to admit that the diminution of duties con- 
ceded to the vessels of several nations," in the ports of this Union, is 
not a favor but a bargain — Now, sir, I admit notliing of tbe kind iu 
my letter of the 30th — far from seemitig to admit my expression, in 
the very phrase cited by you, sir, are Te ne saurois admettref I cannot 
admit. 

As to the question ti'eatcd of in that letter, I shall confine myself to 
ex])ressing again my surprise, that Fiance should be denied, in the 
ports of the territory ceded by her, even those a«lvantages which are 
granted to nations having no treaty or convention with the United 
States. Those nations, you say, sir, have passed no laws exchiding the 
vesseh of the United States from carrying to their ports the productions 
of their own soil, by the excessive aggravation of siircharges. To tbis 
1 shall answer, that France hffs done no such thing; and that her dis- 
criminating duties are far from having ^operated like magic in favor 
of the ship-owners of France, and have not even secured to her navi- 
gation a due share in the carrying trade. And, after all, where is it 
stip'ilated that France shall be treated in Louisiana upon the footing 
of the most favored nation, (as by tlie 8th ai-ticle) only in case she 
shall make no regulations on navigation injurious to the interest of 
the United States, or wliicli might be supposed, contrary thereto? Is 
not every nation free to regulate her own commerce and navigation 
as she sees fit? If her laws amount to prohibitions, if they appear 
unjust, if tbey are deemed injurious, it is, no doubt, allowable to adopt 
similar countervailing measuirs; but sucli measures on her part can- 
not make it justifiable to lose sight of the respect due to a sacred right 
of property, which is absolute in its nature, and is independent of all 
i-egulations of commerce and navigation. — Observe, moreover, sir, 
tliat French vessels arc not treated in the ports of Louisiana either 
upon the footing of the most favored nations, nor upon that of nations 
having no treaty or convention with the United States,} nor even upon 
the footing of those in whose ports the vessels of the llnited States are 
tmtordinuriUj permitted to go and trade. This requires no comment. 
You have stated, sir, that all the speeches cited by me tend to prove 
that there was no inconsistency between the federal constitution and 
certain conditions of the treaty of cession, *• because Louisiana was 
acquired, not as a state, but as a territory; so that while she continued 
in the territorial or colonial condition, regulations of commerce differ- 
ent from those prescribed for tlie states of the Union, might be es- 
tablished in their ports, without contravening tlie constitution."— I 
have already answered this argument by stating the fact, that the 
7th article, which, in your opinion, was judged to be compatible with 

♦These extra charges were siifRcient to drive from our ports the greatest propor- 
tion of the foreign tonnage. All foreign nations were affected by the system we had 
adopted. It seemed to "operate like magic in favor of the ship-owners of the Uuited 
States. — (Dr. Seybert, on the American discriminating duties.) 

t American tonnage law, article 1st. 



70 [91] 

the Constitution, so long only as Louisiana should continue to be a 
colony, receivetl its full execution dunng three years njler Louisiana 
had become a state. 

To this you reply, that in this there was, in truth, a violation of the 
Constitution, '*from which France has received no wrong, and of 
which she can have no motive to complain." But if we have adopted 
in Europe, as a monarchical principle, thatf//e King can do no wrong, 
we also expressly admit, with Mr. Griswold, that the Legislature 
cannot violate the Constitution, even for a day. I look upon it as cer- 
tain and indubitahle, that Congress had not the desire, as it had not 
the power, to violate, intentionally , the Constitution, for a day, nor 
even for an hour. Besides, how can it be considered as a transient, 
inadvertent departure from the Constitution, that the unconstitutional 
execution of the 7th article should have place, not for a day, but for 
tliree years, while all the discussion wi)ich the speeches refeired to 
had tended only to establish, that, in such case, there would, in fact, 
be a violation of the Constitution? You add, sir, '< there was not, in 
any one of those speeches, the intimation of a doubt but that, w lien 
Louisiana should be admitted as a stale into the Union, the regulations 
in her ports must be the same as in the ports of all her sister states;'* 
and, in another part of your letter, you "' again rej^eat, that, by the 
admission of Louisiana into the Union, her ports became subject to 
that provision of the Constitution which interdicts all preference to 
the ports of one state over those of another." 

I think I have shewn, that this article of the constitution is not, in 
any case, applicable to the express stipulations of a sale and convey- 
ance of property; and that it did not belong to France to examine that 
question. I could, perhaps, prove, also, that the two last assertions 
are not, in every point, rigorously correct. Yo^i will and, sir, that, in 
those very speeches, it has been questioned whether all the ports of the 
United States were, at tjjat time, subject to the same commercial re- 
gulations. '* By turning to our statute books, says Mr. Randolph, it 
will be perceived that, at present, there are some ports entitled to ben- 
efits which other ports do not enjoy." He shews, in another place, 
referring to a treaty between the United States and Great Britain, 
that several parts of the state of New York have a system of custom 
and duties peculiar to themselves; and « in this he says, gentlemen 
could not avail themselves of the distinction taken between a territory 
and state, even if they were so disposed, since the ports in question 
were ports of a State.^ 

We see, besides, that Mr. Rodney's principal argument is ground- 
ed not on the article of the constitution mentioned by jou, but on 
that which gives to Congress the power to provide for the general 
welfare. 

• Mr. Randolph said that he did not mean to affirm that this exemption made by 
the treaty of London was constitutional; to solve that question was not his object; 
he would, however, observe, that France had a view in signing the treaty to as--er- 
tain whether all its articles were constitutional or not; since here, as well as else- 
where, the most enhghtened men frequently disagree on certain points of legisla» 
lion. 



[91] 71 

Let lis conclude from these various instances that the question of 
constitutionality is foreign to that whicli we now discuss; that it is 
of little moment to know whether a state may or may not modify its 
administration of customs and duties; that even this point was dis- 
cussed in 1805; that, whether questioned or not, the rigiitof France 
remains still the same, beoause it is a right of property, not afavor^ 
but a hargain; and, finally, that the least doubtful point in all human 
trasactions, is the necessity of fulfilling pmidualltj and JaithfulUj all 
their conditions and stipulations. 

As to the memoir of Mr. Livingston, its object, in your opinion, 
sir, was to convince the Frencii Government that it was its interest, 
instead of taking possession of Louisiana, to put New Orleans into 
the hands of the United States. In the first place, I shall ask what 
uould then iiave become of the territory, and whether, in such case, 
Mr. Livingston's object, which was to prevent every collision, to 
remove every motive of rivalship between the two nations, would 
have been fully accomplished; but every discussion on that subject 
would, I think, be quite useless, the perusal of the memoir being 
sufficient alone to remove every doubt. Its very basis is this question: 
'♦Is it the interest of France to take possession of Louisiana?" 

It runs from beginning to end on that subject, and no other. If, in 
one paragraph it proposes to put the United States in possession of 
New Orleans, it is palpable, fi'om that very paragrapii, and from 
the following, that the memoir refers not to New Orleans alone, but 
to the whole of Louisiana. Let us cite some passages. " '* Who, then, 
will be willing to cultivate Louisiana with slaves:" " Louisiana is sur- 
rounded by an immense wilderness." <'\Vhat advantage can France 
derive from settling that Colony?^' " The productions of Louisiana 
being the same with those of the Antiles. &c. ^c. it grows to evidence 
that, with respect to commerce, the settling (colonization) of JiOuis- 
iana would be prejudicial to France, since it would deprive her other 
colonies of capitals which might be more usefully employed there.'* 

"The possession of Louisiana is, however, very important to 
France, if she applies it to the only use which sound policy would 
seem to approve. I speak of Louisiana only, and in this I do 
not mean to comprehend the Floridas, because I think they are no 
part of the cession; as she can acquire by this cession the right to 
carry on the Mississippi a free trade," kc. &c. 

Further, after having taken pains to explain all the advantages 
which France is to derive from the cession of Louisiana to the United 
States, Mr. Livingston adds: "All this can take place only by tlie 
cession of Ne^^' Orleans to the United States, w ith the reserve of liie 
right of entry at all times, free from all other duties than those paid 
by American vessels, together with the right of navigation on the 
Mississippi." 

It becomes evident, that he means the cession of the w hole of Louis- 
iana, since he advises France to secure to herself the navigation on 
the Mississippi: for, how could this stipulation have been necessary, 
if she were to have retained possession of the western shore? In which 



ii^fBi >M«^ Mjf"7^ii 



TZ [ 91 ] 

cases does Mr. Livingston mention NeM^ OiiciDis only r It is when he 
speaks of a free port, and of securing a free access to French vessels 
and merchandise. And, in these particulars, it is plain that he could 
not express himself otherwise, JNew Oilcans heing, at that time, the 
only port of Louisiana. 

But, what is the ohject of all the arguments of th(^ Minister of tlie 
IJnited States? To dissuade France from taking possession o£ LouU 
siana; to prove, that, under her government, Louisiana never would, 
nor ever could flourish: tliut, not only in relation to commerce, but 
also with respect to policy, tlie settling of Li)uisiana could not be 
profitable to her; that she would find greater advantages in securing 
to herself the solid friendship of the United States, than in the acqui- 
sition of a teri'itory whicli would become a source of rivalshtp; that 
she ought not to change a natural ally from a wai-m friend, into 
a suspicions and jealous neighbor, kc. kc. >yhat is Mr. Livingston's 
conclusion? That, by ado])ting his opinion, France would easily be 
able to introduce into the ^ye;•tern Cousitry the products of her manu- 
factures, which the United States would have no interest to prevent, 
every cause oi' rivalship between the two nations being thus removed. 

What more, I ask, can be wanting, to prove that the memoir relates 
not to the cession of New Orleans alone, but to that of the whole 
territory of Louisi an a ? 

You observe, that Mr. Livingston proposes to France to cede New 
Orleans to the United States, to be taken possession of by them, not 
as an independent and sovereign state, but merely on the same colo- 
nial condition it was held in by S])ain, and as it would have been held 
hy France, had she taken and retained possession of the province. 

To this I can make no other answer, than that I have not been able, 
even on the closest examination, to discover any such thing expressed 
in the memoir. The word merely is not to be seen there, any more 
than the, word exdusivelij in the eighth article of the treaty. There 
is nothing in the memorial that coukl suggest the idea of Louisiana 
continuing under the colonial condition, w hen belonging to the United 
States. 

You do me honor to state, sir, that Mr. Livingston's memoir was 
presented to the French (Jovernment in August, 1802; and yet I read, 
in another part of your letter, that it was written at a time when even 
the treaty, ceding Louisiana to France, was not eoucluded. In this 
there is error of date, since the treaty of St. Ildephonso, by which 
Spain ceded the colony, or province of Louisiana, to France, was 
signed on the 1st of October, 1800, as is stated in the convention of 
1803, and in all the other documents of that period, which give it a 
date more than twenty months' anterior to Mr. Livingston's memoir. 

The error which you think you have found in the citation of ])age 
32 of my letter of the 15th May, does not exist. I have now the 
honor to send you a copy of the original memoir, addressed in Mr. 
Livingston's own hand writing to the French Government; yon will 
there find the word possession, and not cession, of Louisiana, in the 
paragraph alluded to. 



C91] 



73 



In my letter of the \5i\\ of May, I called io mind what, even at the 
time of the cession, was the acknowledged value (»f the tciTitory ceded 
by France, and cited not only the opinions of various writers, but also 
those of several distinguished members of Congress. To this a ou reply, 
that " all those estimates were formed under impressions that the ex- 
tent of the Louisiana cession was vastly more comprehensive than the 
subsequent declarations and efforts of the French Government would 
have made it." 

I do not know to what subsequent declaration you allude. 
In the first article of the treaty, it is expressly stated that tbe French 
Government cedes Louisiana, *' in order to give the United States a re- 
markable proof of friendship.'" In all these subsequent declarations, I 
find expressions of the same good will and friendly dispositiovis com- 
bined with a sense of justice from which even friendship sliould never 
depart. As to the efforts of the French Government, as you do not 
specify them, nor indicate of what description they were, I wish to 
persuade myself, Sir, that you tliereby allude to those efforts, w^hich, 
©n more than one important occasion, within the last forty-tliree 
years, Franceh as taken a pleasure in making to promote the|prosperity 
of t!ic United States. 

What were the real motives wliich induced the French government 
not to retain Louisiana? I sec no other, nor can discover any, but 
those expressed in the treaty, and therefore I shall not discuss 
this point. I can, however, assert, that France lias, at all times. 
proved that she could do much for her friends, and had little fear of 
her enemies. For this reason, H\\e opinion so forcibly nrged in the 
memoir of Mr. Livingston, has made hut little impression on my 
mind, and, if such a question were not irrelevant to the present sub- 
ject of discussion, I believe that I could easily shew that France could 
have retained her territoi-y of Louisiana, as well in war as in peace. 
I «annot conclude better than by citing, in support o? my cause, 
the words of a celebrated statesman, whose opinions I have already 
had occasion to quote, and must be received as authority every where^ 
and on every occasion. 

Opinion of Mr. Madison in 1794, 
" The fifteenth article, Mr. Chairman, has another extraordinary 
feature, which I sbould imagine must strike every obseiver. In the 
treaties which profess to put us on the footing of the most favored 
nation, it is stipulated that, where new favors are granted to a parti- 
cular nation, in retui-n for favors received, the paity claiming the new 
favor shall pay the price of it- This is just and prtiper uliere tbc 
footing of the most favored nation is established at all. But this ar- 
ticle gives to Great Britain the full benefit of all privileges that may 
Lc granted to any other nation, without requiring from her the same 
equivalent privileges with thosegranted by such nation. Hence,it would 
happen, that if Spain, Portugal, or France, should open their colo- 
nial ports to the United States, i^ consideration of «f rtain privileges, 
in our trade, the same privileges would vasxilt gratis and ipso facto Xo 

Great Britain. ''^ 

•Mr. Madison's speech, Bntislj Treaty, 15th April, 1792, 
10 



itifrftf iMiai'^flf 



74 ♦ [91] 

The present claim of France is the same, or rather it is better, 
since it e^rows not out of a Commercial Convention, but out of a con- 
tract of sale, and since France has, in fact, already paid for her pri- 
vilej^e, while England, in the instance cited, would have given no 
consideration; still, however, Mr. Madison says that England must, 
by the terms of the article, ohXa'm gratis and ?>so /ado every right 
or privilege granted to any other nation, whether gratuitously or for 
an equivalent. From all which I conclude, sir, that France has a 
right to enjoy gratis and ipso facto the privilege reserved to her by the 
8th article of the Louisiana treaty. 

When so able an advocate as Mr. Madison has taken up my de- 
fence, I need say no more. 

I have honor to be, &c. &c. 

G. HYDE DE NEUVILLE. 



No. 20. 

Baro7i de JS'eu-ville to the Secretary of StatCf 

Washington, October 15, 1821. 

[translation.] 

Sir: I have received fresb instructions from my Govennnent re- 
quiring me to insist upon the execution of the 8th article of the Lou- 
isiana treaty, or to demand at least that, in the nsean time, our ship- 
ping be made to enjoy, in the ports of the Territory ceded by France, 
all the privileges and advantages which arc granted in the same 
ports to such nations as have no treaty or convention with the United 
States. 

On this subject I must again refer to my letter of the 50th of March 
last. Considering, howev»i% that, at the date of these instructions, 
my Government was not informed of the present state of the negotia- 
tion, and being solicitous to make all possible exertion for the removal 
of evci-y difficulty to the negotiation, I have the honor again to pro- 
pose (in case you should persist in your opinion on the Louisiana 
question, as f adhere to mine.) that we enter into the agreement sug- 
gested in my letter of June 30th, and 3d of August. 
Accept. &;c. kc, kc 

G. HYDE DE NEUVILLE, 



No. 21. 
Extract of a letter C^o. 2SS J from Mr. Gallatin to Mr. Mams, dated 

24th September, 1822. 
"I had yesterday a conference with Mr. de Villele on the subject 
of our claims. He expressed his wish that a general arrangement 



[911 



75 



mieht take place, embracin.s: all the subjects of a..scnssiou between 
the two countries; stated th.,se to be the reclaniations of the Lnite.l 
States for snoliations on their trade; those of France on account of 
Beaumarchais' claim, and of the vessels captured on the coas ot Al- 
rica, and the question a.ising under the Louismna treaty; and askea 
whether I ^vas prepared to negotiate upon all Jf'^f l^'""^,^;, . Vf"" 
swered that I was ready to discuss them all, but that I ™'^'.f "^Vl^^^^^ 
unitine: the Louisiana question to that of claims for in^em,. y, as tiny 
were Essentially distinct, and as I thou.s;ht that, after all ha had 
passed! we had 'a right to expect that - ^-'ther obstacU. s W e 
thrown in the discussion of oar clanns by conncct.n.? »* ;^'<?'/'^,^J;^^^'^ 
foreign to them. Mr. de Villele appeared to acquiesce m that obsei- 

vatioii." 



No. 22. 

■Extract of a letter, JV'b. 236, from Mr. Gallatin to Mr. Adams, dated 
ISth November, 1822. 

« I received, on tlie 8tb instant, a letter of Mr. «e ViHele of the 
6th, a copy of \vhich is enclosed, together with that ot my ans^^e^ 

''ixhere'; no doubt that the attempt to blend the discussio.^, ..spect • 
ine: the claims, with that concerning the construction ot the 8 a.- 
Se of the Lo'uisiana treaty, is intended to pos pone if iu>t to de eat 
the first obiect. It must have been presumed that 1 could not na\G 
p Ix : onS Louisiana question: and that, m «- I - ; ^e^^™ f. 
!,nt be such as to authorize me to acquiesce in the consts uction con 

iedfofu; France. From the ^"<''- f >''« 'f '^^^ ^rl^t ^ 
nfhPT- rirrunistances, I am inclined to tliink that Lro\einment amu 

that that paper is considered as the organ ot Mr. dc > illele s 

""'" U will now remain for the President to decide whether it is pro- 
pet^:;!i risers on the -^ject of tlie Ws.na ^e^ and^ 

1 that case, vvhc^lu^r it ^ f.r ^le u^ere^ of^^^ ^^^t^?le„t 
purchase the annulation of ^^^ ^th aitcle. iliat ^^^_ 

means to make their c aim ""^^^^ / ; ^" Yet as n av be mistaken, 

"T'^ "' X^^ M;:;;;r;! ': " ;me tt^Len circumstances, 

I beg leave again to refer to the several lettcis m v,hnM 
plied for instructions on that subje<;t. 



av 



76 



[ 91 ] 



No. £2. «. 

Mr. ViUelc to Jlr. Gallatin. 
[tkanslatiojv.] 

Faris, J\n\ 6, 182a. 

Sir: The ronvrntion concluded at Wosl.ingtoii, o), the 24th of June 

ast, lias ,rnu.^od the obstacles ^vhich inoLnet>tai:ily fettered the rela! 

tmns ot o.njm-rcc between France and the United *States. Althon4 

:::;;"r''''"'V' *•"'-' ^''/'J"''-'^'''^'' '- P'-*^''"^^-^ ^'-^ expectation of a 

neV tin Tr 'r ' •' ^'"^^ l""'"' ''•"■''^^'^'' '^ ''^ '"tended to leave pro- 

pu nne lor disossing and establishing this treaty npon bases the 

nost confonnab e to the interests of the two states. ' The communica 

int,. liis Majesty has seen, xvith satisfaction, this happy effect of the 
arrar^ement concluded in his name and in the nan.'^oVtt United 

fiiJv^'I'tilSYf'' clifficlties still remain to he cleared, they will be ea- 
M > sett lo.l between two powers that are sincerely desirous of estab- 
lis hing then- relations on the most perfect erp.ity. ' 

it Js in this spirit of reciprocal justice, I have received the rUh... 
;.h.ch you have done n.e thi honor to transmit to me and t tVw h 
out iM-epKlging any thing in their regard, I oua:ht above .1.^1; 
re.r;nrk lo v.u, that France has also%Xaims^Sng o^tf moS'uce 
against the Gov.r.ment of the United States, t would app ar^a.^e 

cX^:!:^:^:::^::'^^' ^^— andar;:^;^;^'^;^ 

1 he intention of his Majesty would be. that these claims and the 
other points in rp.estion, on which the convention of the 24 T T, i^ 

o ?c^: iS'^-nui; "'^'?^ '""v^'^'^' '' that n^^^;:, f • : 

10 Ttn.nnate, simultaneously, and n a definitive ininm^v L.>,.r . 
.I.Tst™,linr^ro/ ,,mn . 't I ["""•<-'"» «"»<■ <»• pretext of misun- 

of ti,oi,. ;;'^,:^;ti ve siuiiccts '" "'" *^™ ^"'"=^' •-'"'' «" «'« i'--' 

ce.^a,., f,. a nogotiatc'cha:.;';' tot":' ", / t'tith ;^ "" """"^ "^- 

tlie lu'solialion. ""= P"™'' ="' '""=' for I"ll-suing also 

Accept, sir, the assurances of the hiKi, consideration, &-. 
-r, ., -f"- "E VILLELE. 

»;.'/! l/ie I'ort Fn'io of Foreipi .Iffairs, 



L913 



77 



Xo 22— b. 



Mr* Gallatin to Mr. de Villelc. 

Paris, ^''ovcmher I2th, 1S22. , 

Sir: I had the honor to receivb your Excellency's IcUer of the 6th 
instant. 

I have special powers to negotiate a convention, providing for the 
just claims of citizens of the United States against France, as also for 
the like claims of French subjects against the United States, with such 
jjcrson or persons as may have a like authority froni His Most Chris- 
tian Majesty. 

As minister of the United States, I am authorized to discuss the 
• question respecting the construction of the 8th article of the Louisiana 
treaty, and to give and receive explanations on tliat subject. But the 
negotiation on tliat point having been transferred to Washington, no 
special powers, in that respect, have been transmitted to me. I had 
understood, in the course of the conference I had the honor to have 
with your Excellency on the 23d of September, and had accordingly 
written to my Government, that it was not intended to insist that that 
subject should be blended with that of private claims. It is, indeed, 
obvious that it would be utterly unjust to make the admission of thof^c 
to depend on the result of a negotiation on a subject with v.hicli they 
have no connection whatever, and the difficulties respecting which 
ai'e of a date posterior to that of the claims. 

All the rejjresentations which His Majesty's Government has made 
to that of the United States, whether on private or on public subjects. 
have uniformly been taken into consideration, and received that at- 
tention to which they were so justly entitled. In no instance has the 
Government of the United States declined to open a discussion on any 
subject thus offered to tlieir consideration by France, or made it a 
preliminary condition, that the discussion should also embrace some 
other subject in whici) they m.ight happen to take a greater interest. 
The question respecting the 8th article oi the Louisiana treaty has, in 
particular, been the subject of a voluminous correspondence, in tlie 
course of which, the arguments in support of the const -uction insist- 
ed on by each party, respectively, were made known to the other. I 
have, in t!ie meanwiiile, for six years, made unceasing application to 
His Majesty's Government for the settlement of claims to a vast 
amount, affecting the ^Interest of numerous individuals, and arising 
from flagrant violations of the law of nations and of the rights of the 
United States, without having ever been able to obtain, to tins day, 
satisfaction, in a single instance, or even that the subject should be 
taken into consideration and discussed. After so many vexatious de- 
lays, for which different causes have, at different times, been assigned, 
it cannot now be intended again to postpone the investigation of that 
subject, by insisting that it should be treated in connection with one 
foreign to it, and which has already been discussed. The United 
States have, at least, the right to ask that their demands should also 



78 [91] 

])C examined ami discussed, and I trust that since I am authorized to 
treat as well concerning the claims of French suhjects against the 
United States, as respecting those of American citizens against 
France, a distinct negotiation to that effect will he opened without any 
further delay. 

Permit me, at the same time, to renew to your Excellency tlic as- 
surances that the United States have the most earnest desire that 
every suhjcct of diiTerence hctween the two countries should be ami- 
cably arranged, and their commercial and political relations placed 
on the most friendly and solid footing. They will he ready to open 
again negotiations on the subject of the 8th article of the Louisiana 
treaty, and on every other which remains to be adjusted, and will 
have no objection that the seat of those negotiations should be trans- 
ferred from Washington to this })lace. i. 

Although my powers to treat i-espccting every subject connected 
witli the commerce of the two countries may embrace that of a consu- 
lar convention, yet, as this had not been contemplated by my Govern- 
ment, I am not, at this time, prepared to conclude an arrangement 
for that purpose. 

I request your Excellency to accept the assurance, &c. 

ALBEUT GALLATIN. 



No. 23. 

Jilr. Gallatin to Mr. AdamSf J^o. 257. 

Paris, l9Ui A''ovemher, 1822. 

Sir : I received last night, and have the honor to enclose a copy 
of Mr. de Villele's answer, (dated 1 5th inst.) to my letter of the 12th. 
You will perceive that, without taking any notice of the reasons 1 
had urgt'd, why a distinct negotiation should be immediately opened, 
on the subject of the claims against both Governments; he insists that 
this shall be treated in connection with the question respecting the 
construction of the 8th article of the Louisiana treaty. The object is 
too obvious to require any comments on my part, and this final de- 
cision leaves me no other course than to refer the whole to my Go- 
vernment. 

I have the honor to be, with great respect, sir, your most obedient 
servant. ''' • 

ALBERT GALLATIN. 



[91] 79 

No. 23 — a. 
Mr. de Villele to Mr. Gallatin. 

• [translation. ] 

Paris, \5th ^'^ovemher, 1822. 

Sir : You have done me the honor to announce to me, on the 12th 
of this month, that you were authorized to negotiate a convention, re- 
lative to the claims of American citizens at^ainst France, and to 
those of France against the United States; but that you have received 
no power to enter upon a negotiation concerning the interpretation 
of the 8th Article of the Louisiana Treaty. 

The discussions which have ensued upon this last point between 
your Government and the Minister Plenipotentiary of the King, to 
the United States, having come to nothing, and this question remain- 
ing thus undecided, it is as proper as it is just to renew the examin- 
ation of it: it touches upon too great interests not to be treated with 
renewed attention, and to be abandoned. 

If a new arrangement takes place for the claims which are still in 
question, it ought to embrace them all, and the desire of the King's Go- 
vernment is to permit no difticulty to remain, and to leave nothing un- 
decided in the relations of the two countries. 

With this very motive, sir, I have demanded in the letter which I 
had the honor of addressing to you on the 6th of this month, that the 
negotiation to be opened upon the respective claims, should likewise 
include a consular convention. If your powers for discussing these 
different points should not appear to you sufficiently extended, for 
making them the object of a negotiation, I think, sir, that you will 
judge it proper to demand of your Government supplementary autho- 
rity, for coming to an arrangement which can only have the utility 
proposed by the two Governments, by its embracing all the questions 
and claims which are still in dispute. 

I can only refer, sir, upon this subject to the communications 
which I have had the honor of making to you on the 6th of this 
month, and with which you have doubtless made your Government 
acquainted. 

Accept, sir, the assurance of my high consideration. 

The Minister of Finance, charged ad interim 
with the Port Folio of Foreign Aifairs. 

JH. J)e VILLELE, 



No 24. 

Mr. Gallatin to Mr. Mams, .Xo. 241. 

Paris, 5f/i January, 1823. 

Sir: I had, after his return from Verona, a conversation with the 
Duke of Montmorency, on our claims. I complained in strong terms 



'"^■11 I I I iMMIiii iTTI' ¥Ji9 



80 [91] 

of the decision taken by Mr. do VIHclc, and said, tliat his insisting (a 
connect that subject with the discussion respecting the constructioti 
of the 8th article of the Louisiana treaty, would be considered in the 
United States as an attempt to avoid altogether the payment of the 
indemnities due to our citizens. I then stated, tliat the reluctance 
evinced by the Government of France, to make a general arrange- 
ment on that subject, had induced the President to authoiize me to 
make a -separate aj)plication for the Antwerp claims; that what had 
now taken place, afforded an additional proof of the difficulties which 
stood in the way of a general transaction; and that, wliilstthis seem- 
ed indefinitely postponed, I hoj)cd that the special aj)plication would 
at least be attended to, and receive a favorable decision. 

The Duke, after some genei'al observations on the earnest desire 
of France, that all the subjects of difference between the two coun- 
tries should be definitively arranged, and declaring that this was (he 
only motive for insisting on a negotiation embracing all those points, 
said that to take up at this time any special claim, appeared to him 
inconsistent with the official communication made to me by Mr. dc 
Villele, and that we must wait at least till'l had received an answer from 
my Government, to whom 1 must of course have transmitted the cor- 
respondence. He promised, however, to lay my request before the 
King's council, but wilhout giving me any expectation that it would 
be favorably received. 

It is probable that even this has been prevented by the Duke's re- 
signation, whicl) took place a few days after our conversation; and 
1 think it quite useless to renew, at tins time, tlie application to his 
successor Mr. de Chateaubriand. I will therefore wait till I receive 
your instructions in answer to my several despatches on this sub- 
ject. 

I have the honor to be, 

With great respect, sir, 

Your most obedient servant, 

ALBERT GALLATIN. 



No. 25, 

J/r. Gallailn io Mr, Mams. Xo. 250, 

Paris, '27th Fchruartj, 1823. 

Sir: I had designedly abstained from answering Mr. de Villele's 
vi^fc'tiklst letter, of the 15th of November, in order to be able to avail my- 
"^a" '^ self of any change in the ministi-y, or of any other favorable circum- 
stance which might arise. Tiie more I have reflected on the gi'ound 
assumed by this Government, on the subject of our claims, and on the 
attempt to connect their discussion with the question arising under the 
eighth article of the Louisiana treaty, the more I have felt satisfied 



[91] 81 

that it was impossible that the United States should depart from the 
true construction of that article, and acquiesce in that contended for 
bv Franco, and that a renewed discussion on that subject would be 
unprotitallc, and lead to no result m hatever. As a last, but I be- 
lieve, unavailing effort, I have concluded to express that conviction to 
the French Government, and have, accordingly, addressed, this day, 
to Mr. Chateaubriand the letter of wiiich I have the honor to enclose 

a (-"opy. ,. . . , 

I have no doubt that there \^ not at this time any disposition to do 
us justice, and that if we were even to make some concessions, with 
respect to the article abovemeotioned, we could not succeed in making 
an arrangem.ent, on tiie subject of the claims, satisfactory to the par- 
ties, or such as the Government of the United States would feel justi- 
f;ed*to accept. With that view of the subject, it appears to me evi- 
dent that it is less disadvantageous to let the question rest for the pre- 
sent as it is, than to entangle ourselves by consenting to blend it with 
tiie discussion of the Louisiana treaty; whilst, on the other hand, the 
comnr.inication of this determination, coming from me, before any 
specinc instructions can have been received from you, is less peremp- 
tory than if founded on these instructions, does not commit Govern- 
\ merit, and leaves the United States at liberty to resume, at a more fa- 
■* voi able tune, the negotiation on the ground which may then appear 
most e'igible. 

Indepenc^ent of unforeseen circumstances winch may alter the ilis- 
positions of this Government, I can perceive bui one mode calculated 
to produce some effect. It is that the parties interested should peti- 
tion Con2:ress, and that there should be some marked expression of 
thr sentiments of that body in their favor. The apathy of the great 
mass of the claimants, and the silence preserved in that respect, mir- 
in"- so many years, in all our public discussions, have, undoubtedly, 
pr yiured here the impression that very little interest was felt on that 
subject, and, in some degree, contributed in rendering our efforts to 
obtain justice unavailing. 

I have the honor to be, 

W ith great respect, sir. 

Your most obedient servant, 

ALBERT GALLATIN. 



No. 25.— a. 
Mr. Gallatin to Viscount ae Chateaubriand. 

Paris, Z7th February, 1823. 

Sit?: I had the honor to receive H. E. Count de Villele's letter of the 
15th of November last, by which, notwithstanding the rcmonstrauGes 
11 






«2 C ^i 3 

contained in mine of the 12th, H. E. being at that time charged with 
thf Oepartincnt of Foreign Affairs, still insisted that the discussion 
of the claims of individuals of both nations upon the two govern- 
ments, respectively, should not take place unless it was connected 
with a renewed negotiation on the 8th article of the Louisiana treaty. 
A conversation I had the honor to have with H. E. the Duke de 
Mo itmorency after his return from Verona, induced me to hope, al- 
thougM he did not encourage any expectation of a different result, 
that he would however again lay the subject before his majesty's 
council of ministers. This circumstance, the subsequent change in 
the department of foreign affairs, and the objects of primary impor- 
tance which have heretofore necessarily engrossed your excellency's 
attention, have prevented an earlier official answer to H. E. Count 
de Villele's letter. 

It has, together with the others on the same subject, as he had na- 
turally anticipated, been of course transmitted to my government. 
But. on a review of the correspondence of Mr. Adams with Mr. 
Hyde de Neuville and with myself, 1 must express my perfect con- 
viction, that the subject having been maturely examined and tho- 
roughly discussed, there cannot be the least expectation that the United 
States will alter their view of it, or acquiesce in the construction put 
by His Majesty's minister on the 8th article of the Louisiana treaty. 
It is not my intention at this moment to renew a discussion which 
seems to have been already exhausted; but I will beg leave simply to 
state the question to your excellency. 

It was agreed by the article above mentioned, that the ships of 
France should forever be treated upon the footing of the most favored 
nation in the ports of Louisiana. 

Vessels of certain foreign nations being now treated in the ports of 
the United States (including those of Louisiana) on the same footing 
with American vessels, in consideration of the American vessels be- 
ing treated in the ports of those nations on the same footing with 
their own vessels; France has required that French vessels should, 
-by virtue of the said article, be treated in the ports of Louisiana on 
the same footing with the vessels of those nations, w ithont allowing on 
her part the consideration or reciprocal condition by virtue of which 
those vessels are thus treated. 

The United States contend that the right to be treated upon the foot- 
ing of the most favored nation, when not otherwise defined, and 
when expressed only in those words, is that, and can only he that of 
being entitled to that treatment gratuitously, if such nation eiijojs 
it gratuitously, and on paying the same equivalent if it has been 
granted in consideration of an equivalent. Setting aside every collat- 
eral matter and subsidiary argument, they say, that the article in 
question, expressed as it is, can have no other meaning, is sosceptible 
of no othei- construction, for this plain and incontrovertible reason, 
that, if the French vessels were allowed to recei\e gratuitously the same 
treatment which those of certain otiier nations receive only in consi- 
deration of an equivalent, they would not be treated as the most fa- 



L913 85 

vored nation, but more favorably than any other nation. And since 
the article must necessarily have the meaning contended for by 
the United States and no other, the omission or insertion ol words to 
define it is wholly immaterial, a definition being necessary only when 
the expressions nsed are of doubtful import, and the insertion of words 
to that effect in some other treaties, belonging to that class of expla- 
natory but superfluous phrases of which instances are to be tound m 

so many treaties. . ^i ^ • • x 

It mi"-ht, indeed, have perhaps been sufficient to say, that, in point 
of fact,°there was no most favored nation in the United States, the 
ri'^ht enjoined by the vessels of certain foreign nations to he treated 
in the ports of the United States as American vessels, m consider- 
ation of American vessels receiving a similar treatment in the ports 
of those nations, not being a favor but a mere act of reciprocity. 

Let me also, observe, that the pretension of France Avould, if ad- 
mitted, leave no altt?rnative to the United States than either to suffer 
the whole commerce between France and Louisiana to be carried ex- 
clusively in French vessels, or to renounce the right ot making 
arrangements with other nations, deemed essential to our prospenty, 
and having for object not to lay restrictions on commerce but to 
remove th?m. If the meaning of the 8th article of the Louisiatia 
treaty was such indeed as has been contended for on the part of F ranee, 
the United States, bound to fulfil tiieir engagements must submit to 
the consciuences, whatever these might be: but th.s having been 
proven not to be the case, the observation is made only to show that 
the United States never can, either for the sake of obtaining indem- 
nities for their citizens, or from their anxious desire to settle, by con- 
ciliatory arrangements, all their diff-erences with France be brought 
to acquiesce in the erroneous construction put upon the article m ques- 

^''r'he proposal made by H. E. Mr. de Villele, in his letter of the 6th 
of NovJ^nber, and reiterated in that of the 1 5th, can th^f «J« \^^ '^^ 
other eff-ect than to produce unnecessary delays, and ^^^J'^, if pei sis ed 
in, be tantamount to an indefinite postponement ^J/'^f .^^.^/"/"f ^^^^ 
and settlement of the claims of the citizens of the Um ed Sta e jt 
will remain for his Majesty's Governmen to decide '^^^^^^J^'^^^^^^^ 

termination be consistent with justice, ^'^^f '^^'' *^%^.^!^ ^vrOov^^^^^ 
private individuals should be thus ^^Ijourned because the t^^oG^^^^^^ 

ments happen to diff-er in opi"i«^«A^ '"^'J'- ^ SnTnnirallin^ 
those claims. Having nothing to add to my ^'^^^y.^;^^^^^^,^^^ 
applications on that subject, my only object at J'^^^ '^ ^"^^"^Jl^;,^^^^^^^ 
ti show that I cannot expect any instructions from my Government 
that will alter the state of the question. 

I request your Excellency to accept f^/^^^r-J'^iLATIN. 



xm\Sin!Si:^n 



84 L91] 

No. 26. 

Mr. Brown to Mr. Adams, JVo. 1 7. 

Pahis, JVox?. 29, 1884. 

Sir: Not ha^^ng recexA'^ed any answer to the letter which, on the 
22d ultimo, I adchessed to the Minister of Foreign Affairs, 1 sent 
hitn a note requesting that he would favor me with a ronlerence at as 
early a day as his convenience m ould permit, and received his answer 
appointing the 25th instant for that purpose. 

I waiti'd upon him at the appointed hoisr, and after an interchange 
of the chstomaiT salutations, 1 remindeil him that 1 had signiiied to 
him my wish to converse freely v.-ith him on the subject of the claims 
of American citizens on the Government of France, and that the 
state of my health alone had prevented me from asking a conference 
on that topic prior to the transmission of my letter of the 22d ultimo. 
I then, in a concise manner, called his attcnti()n to the state of the 
negotiation, and exi;resse<:l my hope that the French Government 
would no longer arrest the progi-ess of the discussion by insisting on 
connecting it witji the question ar-ising out of the 8th article of the 
Louisiana treaty. The two subjecis, I cojitended, were entirely 
dissimilar in their nature; and, therefore, could not. with any degree 
of propriety, be eujhraced in the same discussion. In the one case, 
American citizens ask indemnity for their property, which has been 
taken from them undei' the authority of the French Government, and 
in opposition to the plainest principlf^s of law and justice- in the 
other, the Governments of the United States and France disagree in 
their construction of an article in a treaty whicli ha« no relation to 
the question of claims. The justice of tlie claims of \merican citi- 
zens has never been denied by France, whilst the United States have 
not hitherto seen any reason to admit that France has any Just claim 
uruler the 8th article of the Louisiana treaty. I a~kei ];im whetlier 
it was either just or reasonable that tliese claims 'hould leniaiu un- 
satisfied until the two Governments could agree in their interpreta- 
tion of the treaty? Although the United States have been always 
ready to continue to discuss with France the question on the treaty, 
yet they cannot consent to connect it with claims for indemnity. I 
reminded him, that, in every instance in which France had presented 
a claim, either on behalf of the Government or her citizens, four ;'ed 
on any supposed injury done by the United States, tlie claim had 
been carefully considered, w ithout ej tangling it with any other que •- 
tion, and, when well foimded, had been.idmitted and settled, that the 
United States had a I'ight to expect a corresponding course oi fair 
conduct on the ])art of France, and, therefore, had seen w ith deep 
regret, the ground assumed in the present instance, and tlte delay 
consequent upon it. I concluded by expressing a liope that t'le nego- 
tiation for our claims, so long susj)ended, would be resumed, and re- 
peated the offer already made, to ejnbrace, in the same negotiation, 
any claims on the part of French sidijects, against the GovcrnmeHt 
of the United States. 



[91] 



85 



X,e Baron ae Danjas ^^XX^^^^ ^ 
Since he had been placed at the heauoii i ^. ^le du- 

Affairs, had been so f J*'^"^ .''^^;„",^ e fmak^^ 
ties so numerous ^^f^^l^^^^f^^;, Sence las voluminous; and that, 
with the subject: that \^^ .^^^^^^^^''^^"^ i„tter he had not hitherto 
with the most earnest des.re to J^^^^^' ^^^^^^^^^^^ eu^sory perusal; 
had the necessary time f «:^^.^^.^;™ ^"^fj hf S not discuss "it with 
that, being ""^^^"^'"J^,^^^ Ve^,^^^^ ?o give it a careful 

me on equal ground, but that ^1^^^^^°^^^^^ f asked him if I 

examination, and to send me ^. ^f fi";*;;"^^^^^^^^ He said that he 

could hope for it in time to send b> ^l^e "e^J v^^^^^^^ „or could he 

could no? Vror^l^lll^^^^^^^^^ should have 

precisely say at ^^''f ? J'^,/ ""'» „.,e^;re it. I assigned as a reason 
it as soon as he could find ^^^^ ,\P^Xw l„,^er, the call made on 
for wishing to be "^mshed wi^. an e^^^^^^^^^^^ last session. He 

the President by the House o I^^P f ^^^^^^^^^^ „f that branch of our 

said, he was already informed of ^^f.P^^Jf J'Vf^";^ questions of dif- 
Legislature, and felt every ^^^VOsMxon to bm^ lllZT^, possible, 
ference between the two 7-^-^^^^^^.^,;^^ at Snt'of tie object 
The conference here ^emnated without the a ^^^^ .^^ time I 

which induced me to ask it. I^y";Jr"an I anticipate, from any 

s;^^b;^M= - VI^^^^- -^^^ ^« ^»^ -^"- '' ''' 

answer which 1 m^^ ^'^^^^^^'-^^ ^ ,,ith great respect, sir, 

' ^-^ruX-r^bedient an^d very — s^e.an^^^^ 



^^tia^r^. .^az^l^TttMR 



